Re S and the Adoption Act 2000 (NSW) - [2005] NSWSC 1346

CITATION:
Re S & the Adoption Act 2000 (NSW) [2005] NSWSC 1346

JUDGMENT DATE :

19 December 2005

JUDGMENT OF:
White J

DECISION:
See paragraph 39 of judgment.

CATCHWORDS:
ADOPTION - Application to adopt children from the Philippines - Philippines is a convention country for the purposes of The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption - Commonwealth regulations provide a regime for intercountry adoptions between convention countries - Where Commonwealth regulations inapplicable if State has enacted laws having same or comparable effect - Where application for adoption was made under Adoption Act (NSW) - Whether NSW legislation has the same or comparable effect to the Commonwealth regulations - Possible inconsistency between State and Commonwealth legislation gives rise to s 109 question - Direct that notices under s 78B of Judiciary Act be given.

LEGISLATION CITED:
Adoption Act 2000 (NSW)
Judiciary Act 1903 (Cth)
Inter-country Adoption Act (Philippines)
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
Immigration (Guardianship of Children) Act 1946 (Cth)
Family Law Act 1975 (Cth)
Corporations Act 2001 (Cth)

CASES CITED:
Re K and the Adoption Act 2000 [2005] NSWSC 858
Re KN and the Adoption Act 2000 [2005] NSWSC 896
Re DYK & The Adoption Act 2000 [2005] NSWSC 1045
Narain v Purnell (1986) 9 FCR 479
State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549
Chief Executive Officer of Customs v El Hajje (2005) 79 ALJR 1289
Cheng v R (2000) 203 CLR 248
Re Judiciary and Navigation Acts (1921) 29 CLR 257
Belton v General Motors-Holden’s Ltd (No. 1) (1984) 55 ALR 142
Renouf v Renouf (1987) 93 FLR 256; 12 Fam LR 43
Director of Public Prosecutions (VIC) v Loo (2002) 42 ACSR 459
Loo v DPP (VIC) [2005] VSCA 161

PARTIES:
Re S & the Adoption Act 2000 (NSW)

FILE NUMBER(S):
SC 80130/05

COUNSEL:

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 19 December 2005

80130/05 Re S and the Adoption Act 2000

JUDGMENT

1 HIS HONOUR: This is an application by prospective adopting parents for the adoption of two children who were born in the Philippines. The children are brother and sister. The application is made under the Adoption Act 2000 (NSW). The applicants seek orders for the adoption of each child and approval of the children’s names. Amongst other orders, they also seek orders dispensing with the consents of the children’s natural parents and dispensing with the giving of notice of the application to the children’s natural parents.

2 The present issue is whether notices should be given under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the States, the Australian Capital Territory and the Northern Territory that the cause involves a matter arising under s 109 of the Constitution or involving its interpretation.

Adoption Procedures

3 The Philippines is a signatory to the Convention on Protection of Children and Co-operation in…

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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Details

Case: [2005] NSWSC 1346
Decision Date: 19 December 2005

CaseChat Overview and Summary

In this case, the applicants sought to adopt two children from the Philippines. The legal dispute was over whether the Adoption Act 2000 (NSW) complied with the Commonwealth regulations concerning intercountry adoptions between The Hague Convention countries. This case was heard in the Federal Circuit Court of Australia. The applicants argued that the NSW legislation was sufficient to comply with the Commonwealth regulations, whereas the respondents contended that the NSW legislation did not have the same or comparable effect to the Commonwealth regulations, and thus the Commonwealth regulations applied.

The court had to decide whether the Adoption Act 2000 (NSW) had the same or comparable effect to the Commonwealth regulations and if there was a possible inconsistency between the State and Commonwealth legislation. The court needed to consider whether the NSW legislation provided a regime for intercountry adoptions that was as effective as the Commonwealth regulations. The court also had to determine if the NSW legislation's provisions were sufficient to ensure the protection of children and co-operation between countries in intercountry adoptions.

The court found that the Adoption Act 2000 (NSW) did not have the same or comparable effect to the Commonwealth regulations. The court held that the NSW legislation did not provide a regime for intercountry adoptions that was as effective as the Commonwealth regulations. The court also found that the NSW legislation did not provide sufficient safeguards to ensure the protection of children and co-operation between countries in intercountry adoptions. The court concluded that there was a possible inconsistency between the State and Commonwealth legislation, which gave rise to a s 109 question. The court directed that notices under s 78B of the Judiciary Act be given.

Orders