Re N and the Adoption Act 2000
[2005] NSWSC 1057
•18 October 2005
CITATION: Re N and the Adoption Act 2000 [2005] NSWSC 1057
HEARING DATE(S): In chambers
JUDGMENT DATE :
18 October 2005JURISDICTION: Equity Adoptions List
JUDGMENT OF: Austin J
DECISION: Adoption order made; consent dispense order and order dispensing notification, in respect of natural parents
CATCHWORDS: ADOPTIONS - foreign-born child placed in care of adopting parents - whether consent of foreign guardian needed in light of Minister's consent - whether consent of natural parents should be dispensed with - court's power to order that copies of the Adoption Order be provided to foreign agency
LEGISLATION CITED: Adoption Act 2000
CASES CITED: Re K and the Adoption Act [2005] NSWSC 858
Re KN and the Adoption Act [2005] NSWSC 896
Re S and the Adoption Act [2005] NSWSC 393PARTIES: RWW and CJW (Applicants)
FILE NUMBER(S): SC 80131/05
COUNSEL: -
SOLICITORS: -
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST
AUSTIN J
TUESDAY 18 OCTOBER 2005
80131/05 RE N AND THE ADOPTION ACT 2000
JUDGMENT
1 HIS HONOUR: This is an application for the adoption of a baby girl, N, born in Thailand on 30 September 2002. She has been in the care of the adopting parents since 20 January 2004. The merits of their adoption application are clear. A report by a private social worker annexed to the delegate’s supporting affidavit describes this as a very successful placement and says there are no concerns in any areas.
2 The adopting parents seek an order approving the child’s forename spelt with the addition of the letter “h” to the name as it appears in her papers. This, they say, is to aid pronunciation. The Departmental delegate does not oppose the application for that order and in my view, it is consistent with the principles underlying the Adoption Act 2000 and should be made.
3 In the Summons the adopting parents sought orders dispensing with the consent of the child’s natural parents and with giving them notice of the application. However, the delegate’s affidavit puts forward the view that it may not be necessary for such orders to be made, because a child entering Australia is a “non-citizen child” as defined in the Immigration and Guardianship of Children Act 1946 (Cth) and under s 6 of that Act the child is under the guardianship of the Federal Minister of Immigration, whose consent is annexed to the delegate’s affidavit.
4 This matter has been considered in several recent cases: Re S and the Adoption Act [2005] NSWSC 393 (Gzell J); Re K and the Adoption Act [2005] NSWSC 858 (White J); Re KN and the Adoption Act [2005] NSWSC 896 (Campbell J). The view has consistently been taken in those cases that, in light of s 6, the consent of the person who was the overseas guardian before the child arrived in Australia is unnecessary. I accept that view and I shall apply it here. But according to those cases, s 6 does not eliminate the requirement in s 52 of the Adoption Act that the consent of each natural parent of the child must be given, and they must be notified, unless dispensing orders are made under ss 67 and 72.
5 In the present case a document supplied by the Department of the Public Welfare in Thailand describing the background of the child discloses that the child was abandoned at a hospital by parents said to be Burmese. Attempts were made through the mass media and by checking with the National Police Bureau of Thailand to trace the child’s parents but those attempts were in vain. In the circumstances, I have no difficulty reaching the conclusion that the parents cannot, after reasonable inquiry, be found or identified (s 67(1)(a)). Further, I am satisfied that it would be in the best interests of the child to make a consent dispense order if one is needed, having regard to the evidence showing that it is overwhelmingly in her interests that the adoption should proceed.
6 In these circumstances, the appropriate course is to make orders dispensing with consent and notification of the natural parents, on the basis that such orders are needed under the law stated in the cases to which I have referred. There may be arguments for a contrary view, which might need to be explored in another case, if the evidence would not provide grounds for making a consent dispense order.
7 In the delegate’s affidavit, although not in the Summons, there is a request for the court to make an order under s 131 of the Adoption Act to release two certified copies of its orders to the Department for transmission to the Department of the Public Welfare in Thailand. Thailand, like Korea, is not a country to which the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption applies, and it is not a prescribed jurisdiction for the purposes of Div 3 of Pt 2 of Cth 5 of the Adoption Act: Re KN and the Adoption Act at [9]. Therefore s 131 of the Adoption Act does not apply to the present case. I would be prepared to make an order to the same effect, however, in the exercise of the court’s inherent jurisdiction and under s 143 of the Adoption Act, on the basis outlined by Campbell J in Re KN and the Adoption Act at [20] – [26]. I shall do so if the Department notifies the court’s Client Services Officer, Adoptions and Protective Jurisdiction, that such an order is required. I would not require a separate application.
8 I shall make orders for adoption and for dispensing with the consent of the natural parents and their notification, as soon as the draft adoption order is re-engrossed to include such provisions.
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