Re S and the Adoption Act 2000 (NSW) (No. 2)

[2006] NSWSC 1438

Reported Decision: 206 FLR 394

New South Wales

Supreme Court

CITATION:	Re S and the Adoption Act 2000 (NSW) (No. 2) [2006] NSWSC 1438
JUDGMENT DATE :	20 December 2006
JURISDICTION:	Adoptions
JUDGMENT OF:	White J
DECISION:	Make the orders sought in the application under Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth).
CATCHWORDS:	FAMILY LAW & CHILD WELFARE – Adoption – Intercountry adoptions – Prospective adoptive parents sought adoption of children from Philippines – Philippines and Australia parties to Convention on Protection of Children and Co-operation in respect of Intercountry Adoption – Prospective adoptive parents made applications pursuant to both Chapter 4 Adoption Act 2000 (NSW) and Regulation 15 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) – Director-General of New South Wales Department of Community Services also made application on behalf of prospective adoptive parents pursuant to Chapter 5 Adoption Act – Where Adoption Act and Commonwealth Regulations provide different regimes for intercountry adoptions between parties to Convention – Where Commonwealth Regulations inapplicable if Adoption Act has same or comparable effect to Commonwealth Regulations – Whether Adoption Act has same or comparable effect to Commonwealth Regulations – Held that Adoption Act not of same or comparable effect to Commonwealth Regulations - CONSTITUTIONAL LAW – Operation and effect of Commonwealth Constitution – Inconsistency of laws – s 109 Commonwealth Constitution – Whether provisions of Adoption Act pursuant to intercountry adoptions between parties to Convention inconsistent with Commonwealth Regulations – Held that provisions of Adoption Act pursuant to intercountry adoptions between parties to Convention inconsistent with Commonwealth Regulations and invalid to extent of inconsistency - FAMILY LAW & CHILD WELFARE – Adoption – Intercountry adoptions – Whether prospective adoptive parents entitled to orders for adoption of children pursuant to Regulation 15 Commonwealth Regulations – Orders pursuant to Regulation 15 Commonwealth Regulations made.
LEGISLATION CITED:	Adoption Act 2000 (NSW) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) Family Law Act 1975 (Cth) Adoption Regulation 2003 (NSW) Adoption Act 1984 (Vic) Adoption Act 1988 (Tas) Family Law Regulations 1984 (Cth) Adoption of Children Act 1965 (NSW)
CASES CITED:	Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530 Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564
PARTIES:	Re S and the Adoption Act 2000 (NSW) (No. 2)
FILE NUMBER(S):	SC 80130/05
COUNSEL:	In Chambers (M Leeming for Director-General)

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

WHITE J

Wednesday, 20 December 2006

80130/05 Re S and the Adoption Act 2000 (NSW) (No. 2)

JUDGMENT

1 HIS HONOUR: There are three applications for the adoption of two children from the Philippines. The children are brother and sister. The reason there are three applications is because of uncertainty as to what law governs the adoption of children from the Philippines. The Philippines is a signatory to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (concluded 29 May 1993) (entered into force 1 May 1995) (“The Hague Convention on Intercountry Adoption” or “the Convention”).

2 The first application in point of time was made by the prospective adoptive parents pursuant to Chapter 4 of the Adoption Act 2000 (NSW) (“Adoption Act”). An application has also been made by the prospective adoptive parents pursuant to Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth). An application is also made by the Director-General of the Department of Community Services pursuant to s 107 of the Adoption Act for an order for the adoption of the children by the prospective adoptive parents.

The Hague Convention on Intercountry Adoption

3 Both Australia and the Philippines are signatories to the Hague Convention on Intercountry Adoption. One of the objects of the Convention is to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law (Article 1(a)). The Convention applies where a child is habitually resident in one Contracting State (“the State of origin”), has been, is being, or is to be moved to another Contracting State (“the receiving State”), either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin (Article 2(1)).

4 Chapter II is headed “Requirements for Intercountry Adoptions”. It provides:

“ Article 4

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin—
a have established that the child is adoptable,
b have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests,
c have ensured that
(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,
(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,
(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and
(4) the consent of the mother, where required, has been given only after the birth of the child, and
d have ensured, having regard to the age and degree of maturity of the child, that
(1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,
(2) consideration has been given to the child’s wishes and opinions,
(3) the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and
(4) such consent has not been induced by payment or compensation of any kind.

Article 5

An adoption within the scope of the convention shall take place only if the competent authorities of the receiving State—
a have determined that the prospective adoptive parents are eligible and suited to adopt,
b have ensured that the prospective adoptive parents have been counselled as may be necessary, and
c have determined that the child is or will be authorised to enter and reside permanently in that State.

5 Chapter III provides for the designation by each Contracting State of a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. States may appoint more than one Central Authority. The Family Law (Hague Convention on Intercountry Adoption) Regulations provide for the establishment of a Commonwealth Central Authority (Regulations 5 and 6), and State Central Authorities (Regulations 8-11). The Department of Community Services is the relevant State Central Authority.

6 Chapter IV of the Convention specifies procedural requirements for intercountry adoptions. Article 14 provides that persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.

7 Articles 15, 16 and 17 provide as follows:

“ Article 15
1
If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.
2

It shall transmit the report to the Central Authority of the State of origin.

Article 16
1
If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall—
a prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child,
b give due consideration to the child’s upbringing and to his or her ethnic, religious and cultural background,
c ensure that consents have been obtained in accordance with Article 4, and
d determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.
2
It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.

Article 17

Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if—
a the Central Authority of that State has ensured that the prospective adoptive parents agree,
b the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin,
c the Central Authorities of both States have agreed that the adoption may proceed, and
d it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State. ”

8 The transfer of the child to the receiving State may only be carried out only if the requirements of Article 17 have been satisfied (Article 19(1)).

9 It should be noted that it is the Central Authority of the State of origin of the child which is responsible for determining whether the envisaged placement of the child with the prospective adoptive parents is in the best interests of the child (Article 16(1)(d)). It is the responsibility of the Central Authority of the receiving State to be satisfied that the prospective adoptive parents are eligible to adopt the child, and are suitable adoptive parents. The Central Authority of the State of origin is required to consider its report as to the eligibility and suitability of the prospective adoptive parents.

10 A child may only be adopted if the “competent authorities” of the State of origin have determined that an intercountry adoption is in the child’s best interests having given due consideration to the possibilities for placement of the child within the State of origin (Article 4(b)). It is also the responsibility of the competent authorities of the State of origin to ensure that the “persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent …” and have given their consent “in the required legal form” (Article 4(c)(1) and (2)). It is thus a matter for the law of the State of origin to determine whose consent to the intercountry adoption of the child is required, and the form in which such consent must be expressed.

The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)

11 The Family Law (Hague Convention on Intercountry Adoption) Regulations were gazetted on 6 August 1998. The Regulations were made under s 111C(1) of the Family Law Act 1975 (Cth). Section 111C provides:

“ (1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993.
…
(4) Regulations made for the purposes of subsection (3) may, in particular:
…
(b) provide that the regulations do not affect the operation of laws of a State or Territory that relate to adoptions; and
(5) Regulations made for the purposes of this section may:
…
(b) invest a court of a State with federal jurisdiction.
Such jurisdiction is in addition to any other jurisdiction provided for under this Act. ”

12 Regulation 25 invests the Supreme Court with federal jurisdiction in matters arising in New South Wales to which a provision of Pt 4 of the Regulation applies. Regulation 15 is included in Pt 4. Regulation 15 provides:

“ 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) the laws of the Convention country.

(2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons.

(2A) The application must:
(a) be in accordance with Form 3; and
(b) include an affidavit in accordance with Form 2.
(2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State:
(a) if the application is made by 1 applicant — where the applicant habitually resides; or
(b) if the application is made by more than 1 applicant — where the applicants habitually reside.
(2C) The State Central Authority:
(a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the Authority wishes to rely in support of the court making an order other than the order sought in the application; and
(b) must include with that statement an affidavit in accordance with Form 2.
(2D) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to a statement filed under subregulation (2C), being a reply that:
(a) is in accordance with Form 6; and
(b) includes an affidavit in accordance with Form 2.
(2E) An order made by the court must be in accordance with Form 8.
(3) The court may make the order only if it is satisfied that:
(a) the Central Authority of the Convention country has agreed to the adoption of the child; and
(b) the State Central Authority of the State in which the applicant or applicants habitually reside has agreed to the adoption of the child; and
(c) the child is allowed to reside permanently in Australia.
(4) However, the court must not make the order if the child is not in Australia.
(5) For paragraph (3) (c), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so residing.
Note 1 This regulation does not necessarily apply to all States — see regulation 34.
Note 2 If a child to whom an application relates enters Australia before the application is determined, the child may be subject, while the application is being considered, to the Immigration ( Guardianship of Children) Act 1946. Legislation of the State in which an application is made may also have consequences for the child concerned. ”

13 This Regulation does not apply if the Adoption Act has the same effect as, or comparable effect to, Regulation 15. This is the effect of Regulation 34. It provides:

“34 Application
(1) A provision of these Regulations, except Regulations 5, 6, 7, 8, 9, 12 and 13, does not apply to a State in which there is in force a law (an intercountry adoption law ) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State.
(2) Nothing in these Regulations affects:
(a) the jurisdiction of a court of the Commonwealth or a State, or the power of an authority, under an intercountry adoption law to entertain proceedings, make an order or take any other action in relation to an intercountry adoption; or
(b) any such order or action; or
(c) the operation, within a State, of an intercountry adoption law of the State. ”

14 There is nothing in Form 3 which an applicant is required to complete which enlarges on the matters which an applicant must show before the Court may make an order under Regulation 15(3). An application under Regulation 15 must have attached to it, the report prepared on the applicants by the Central Authority of the receiving State under Article 15 of the Convention, and the report prepared on the child by the Central Authority of the State of origin under Article 16 of the Convention.

15 The order to be made in accordance with Form 8 pursuant to Regulation 15(2E) is an order in accordance with the Regulations that the applicants adopt in Australia the named child from the State of origin, and that the Court approve of the forenames and surnames of the child.

16 The affidavit supporting the application is to be in accordance with Form 2. That form provides for the applicants to declare on oath that the facts stated in the document and in any attachment to the document that are within the applicants’ knowledge are correct, and all other facts stated in the document or in any attachment are correct to the best of their knowledge or belief.

17 Accordingly, and subject only to the meaning to be attributed to the expression in Regulation 15(1)(b) “if arrangements for the adoption are made in accordance with … the laws of the State of habitual residence of the person or persons proposing to adopt the child”, the task of the Court in determining an application under Regulation 15 is not to make its own determination of whether the adoption is in the best interests of the child, but whether the requirements of the Convention (including the laws of the State of origin) have been complied with. The Court must also be satisfied that the Central Authority of the State of origin has agreed to the adoption of the child, that the State Central Authority of the State in which the applicants reside has agreed to the adoption of the child, and that the child is allowed to reside permanently in Australia. It is not surprising that, under the Regulations, the Court is not given the task of determining whether the making of an adoption order is in the best interests of the child. That assessment should already have been made by the competent authority and the Central Authority of the State of origin of the child. Rather, the Court’s task is to ensure that the Convention, and the applicable laws of all of the States concerned, have been complied with.

The Effect of Chapters 4 and 5 of the Adoption Act 2000 (NSW)

18 Regulation 15 does not apply if the Adoption Act is a law having the same effect as, or comparable effect to, Regulation 15.

19 Chapter 4 of the Adoption Act describes the adoption process which may lead to the making of an adoption order. Subsection 23(5) provides:

“ 23 Jurisdiction
…
(5) Subject to Part 2 of Chapter 5, the Court has jurisdiction, under and in accordance with this Part, to make an adoption order with respect to the intercountry adoption of a child referred to in Part 2.
Note. Child is defined in the Dictionary. ”

20 Part 2 of Chapter 5 is headed “Intercountry and Overseas Adoptions”. Section 103 (in Division 1 of Part 2) provides:

“ 103 Object of Part

The object of Divisions 1–3 is to provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth law.
Note. For the effect of doing this, see regulation 34 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 and regulation 8 of the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 1998 , of the Commonwealth.”

21 Section 107 provides:

“ 107 Adoption in NSW of child from Convention country by parents from NSW
(1) The Court may, on application by the Director-General or the principal officer of an accredited adoption service provider that may provide intercountry adoption services, make an order for the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who are habitually resident in the State.
Note. Part 3 of Chapter 4 provides for assessment of the suitability, and selection, of persons to adopt by the Director-General or principal officer.
(2) The Court may make the order only if satisfied that:
(a) the Central Authority of the Convention country has agreed to the adoption of the child, and
(b) the child is allowed to reside permanently in Australia.
(3) The Court must not make the order if the child is not in Australia.
(4) For the purposes of subsection (2) (b), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth or the State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child so residing.
Note. If a child enters Australia before the order is made, the child may be subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth. See section 77 of this Act. ”

22 Only the Director-General may apply to the Court for an order under s 107. It may be noted that whilst s 107 incorporates in substance the requirements of Regulation 15(3), it does not set out any other matters of which the Court need be satisfied before an adoption order is made under that section. In particular, there is no requirement under s 107 that, before an order can be made under that section, the arrangements for the adoption of the child be shown to have been made in accordance with the Convention or the laws of the State of origin.

23 Section 107 is silent as to whether it provides an avenue for the making of an adoption order separate from the requirements of Chapter 4 of the Adoption Act, or whether Chapter 4 of the Adoption Act contains the substantive requirements for the making of an order under s 107. If s 107 is a “stand alone” provision, then it is not a provision to the same or comparable effect as Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations. The reason for that is that the substantive requirements in Regulation 15(1) are not picked up by s 107.

24 The Director-General submitted that:

“ The note to s 107 points to Chapter 4 of the NSW Act as containing the criteria to be applied in assessing the suitability of persons for adoption of children from Convention countries … The structure adopted by the NSW Act is for the substantive criteria applicable to all applications (including Convention applications and recognitions) to be contained within Part 4 (scil. Ch 4) (esp s 90). For that reason, Part 4 (scil. Ch 4) should be construed as serving a dual purpose:
a. containing the substantive provisions governing non-Convention applications; and
b. containing the substantive provisions governing Convention applications such as the one before the Court. ”

25 I agree that, construing the Adoption Act as a whole, s 107 should not be seen as a “stand alone” provision setting out the whole of the requirements for the making of an adoption order in respect of a child from a Convention country.

26 The question then is whether the effect of Chapter 4 of the Adoption Act (read with s 107) is the same as, or comparable to, the effect of Regulation 15.

27 Part 2 of Chapter 4 deals with the matters to which a “decision maker” must have regard in placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption. The decision maker must take into account the child’s culture, any disability, language, and religion, and the principle that the child’s given name, identity, language and cultural and religious ties should as far as possible be preserved (s 32). A “decision maker” is defined as follows:

“ decision maker in relation to a decision about the adoption of a child means the Court, the Director-General, an accredited adoption service provider, or a principal officer of an accredited adoption service provider. ”

28 Clearly, s 32 does not apply to a decision by a Central Authority of the State of origin of a child from a Convention country. Such an authority is not a “decision maker” within the meaning of s 32. However, the substance of the matters to which a decision maker under s 32 is to have regard are also to be given due consideration by the Central Authority of the State of origin pursuant to Article 16 of the Convention.

29 Part 3 of Chapter 4 deals with the selection of prospective adoptive parents. It applies whether the person or couple wishing to adopt a child proposes to adopt a child from within New South Wales, or from a Convention country, or from any overseas country. It enables the Department of Community Services, as the Central Authority of the State of New South Wales to prepare a report pursuant to Article 15 of the Convention.

30 Part 4 of Chapter 4 deals with adoption plans. In my view, that Part is not relevant to the present proceedings.

31 Part 5 of Chapter 4 deals with consents to adoptions. It contains significant differences from the Convention procedures. Division 1 of Part 5 of Chapter 4 specifies who must consent to an adoption. Unless consent is dispensed with pursuant to Division 3 of Part 5 of Chapter 4, the consent of each parent and of any guardian of the child is required in the case of a child who is younger than 18 and has not previously been adopted. Sections 52-65 make detailed provision, not only as to whose consent is required for the adoption of a child, but the procedures to be followed before the consent is effective. To be effective, the consent must not only be an informed consent, but must also be in a form prescribed by the Regulations (ss 58(1)(b) and 61(1)). The person giving consent must have been counselled by a counsellor having qualifications and functions prescribed by the Regulations (ss 57 (definition of counsellor), 61(3) and 63).

32 The Court can dispense with a person’s consent, if satisfied that to do so is in the best interests of the child, only in a limited number of circumstances. They are prescribed by s 67(1)(a)-(d). The circumstances in which consent may be dispensed with are that a person whose consent is required cannot, after reasonable inquiry, be found or identified (s 67(1)(a)); that such a person is in such a physical or mental condition as not to be capable of giving proper consideration to the question (s 67(1)(b)); or, if the person is the parent or the guardian of the child, that there is serious concern for the welfare of the child, and it is in the best interests of the child to override the wishes of the parent or guardian (s 67(1)(c)); or in certain cases where authorised carers of the child apply for adoption (s. 67(1)(d)).

33 These provisions are substantively different from the Convention procedures. Under the Convention, the competent authority of the State of origin must ensure that the persons, institutions and authorities whose consent is necessary for adoption have been counselled as may be necessary and duly informed of the effects of their consents. It is a matter for the law of the State of origin to determine whose consent is necessary to the adoption. There is no equivalent provision that the consent of the child’s parents can only be dispensed with in circumstances corresponding to s 67(1)(a)-(d).

34 In the present case, a Filippino court found that the children had been deliberately abandoned and neglected by their parents. An order was made committing the children to the care and custody of the Filippino Department of Social Welfare and Development as the legal guardian of the children, entitled to their legal custody and control, responsible for their support as provided by law, and, when proper, with authority to give consent to their placement, guardianship and/or adoption. The Court ordered that the rights of the biological parents were terminated.

35 Accordingly, I infer that the consents of the biological parents to the adoption of the children were not obtained, but that that was in accordance with Filippino law, having regard to the orders to which I have referred. However, if Chapter 4 of the Adoption Act applied, it would not be possible to make an adoption order in respect of the children, unless a consent dispense order were made.

36 In the present case, such a consent dispense order could be made on the ground that the parents could not, after reasonable inquiry, be found or identified. The reasons for judgment of the Filippino Court to which I have referred recorded that the relevant social worker had been only able to find the paternal grandmother of the children, and that neither the mother nor father could be located. However, the position in other cases might be different. It could not be in accordance with Convention procedures for an adoption order to have to be refused in New South Wales because the criteria for making a consent dispense order were not satisfied, and an effective consent complying with the requirements of Division 2 of Part 5 of Chapter 4 had not been given, notwithstanding that the necessary consents under the law of the State of origin had been obtained from the persons, institutions or authorities whose consent was necessary, in the required legal form of the State of origin. That would be the consequence of a finding that Chapter 4 was a law to the same effect, or comparable effect, of Regulation 15.

37 I do not think there is anything in Parts 6, 7 and 8 of Chapter 4 relevant to the present proceedings.

38 Part 9 of Chapter 4 deals with the matters to be satisfied before an adoption order can be made. Section 90, which is in Part 9 of Chapter 4, requires the Court to be satisfied as to certain matters. It provides:

“ 90 Court to be satisfied as to certain matters
(cf AC Act s 21)
(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied:
(a) that the best interests of the child will be promoted by the adoption, and
(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
Note. Sections 127–129 contain provisions about ascertainment of the wishes of a child by the Court.
(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and
Note. See Part 3 of this Chapter.
(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and
(e) if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and
(f) if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and
(g) if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and
Note. See for example, section 31.
(h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.
(2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.
(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.
Note. Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998 . Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt. ”

39 The first requirement is for the Court to be satisfied that the order would be in the best interests of the child (s 90(1)(a)). As I have said, there is nothing in Regulation 15 which requires that the Court be satisfied that the best interests of the child will be promoted by the adoption, unless that is the effect of Regulation 15(1)(b). The same is true of the matters in s 90(1)(b). Section 90(1)(c) requires the Court to be satisfied that the prospective adoptive parents have been selected in accordance with the Adoption Act. In my view, the selection of the adoptive parents is part of the arrangements for the adoption to be made by the Central Authority of the receiving State under Article 15 of the Convention. Accordingly, it is a substantive requirement to be satisfied under both Regulation 15(1) and s 90(1)(c).

40 I have already commented upon s 90(1)(d) which deals with consents to adoption. There is no equivalent provision in the Regulations or the Convention authorising the Court to dispense with the requirement of the consent of every person whose consent under the Convention is required. There is no provision in the Regulations requiring the consent of the child’s parents to the application, or providing for the dispensation of such a requirement.

41 Section 90(1)(e) and (f) are not relevant to the present issue. It is clear from s 90(1)(g) that the New South Wales Parliament intended that applications for adoption of a child from a Convention country could be made under Chapter 4. The expression “other relevant law” in s 90(1)(g) is not defined. The note refers to s 31. Section 31 provides:

“31 Adoption of non-citizen child

(1) The Court must not make an adoption order in relation to a non-citizen child as referred to in Part 2 of Chapter 5 unless:
(a) arrangements for adoption of the child have been made by the Director-General or an accredited adoption service provider that may provide intercountry adoption services or the Director-General applies for the order on the basis that the proposed adoptive parent has intercountry parental responsibility for the child, and
(b) the provisions of this Act and the regulations relating to intercountry adoptions have been complied with.
(2) For the purposes of this section, a person has intercountry parental responsibility for a child if the child is from a country other than a Convention country or a prescribed overseas jurisdiction and the person, after being resident in that country for 12 months or more or being domiciled in that country, was given parental responsibility for the child under the law of that country. ”

42 Neither s 90(1)(g), nor s 31, requires the Court to be satisfied that the arrangements for adoption were made in accordance with the Convention. Section 31(1)(b) refers to the Regulations relating to intercountry adoptions. The Adoption Regulation 2003 (NSW) contains no provisions requiring that the arrangements for adoption be made in accordance with the Convention. It may be arguable that the expression “relevant law” extends to the law of the country from which the child comes, so that the Court must be satisfied that the laws of the State of origin in relation to the adoption were satisfied. However, the expression does not cover the requirements of the Convention itself. The Convention is not a law. Neither the Adoption Act, nor the Family Law (Hague Convention on Intercountry Adoptions) Regulations provides that the Convention is to apply as a law of New South Wales or Australia. Accordingly, there is no requirement in s 90 that, before making an adoption order, the Court be satisfied that the arrangements for the adoption were made in accordance with the Convention.

43 I do not consider that s 90(1)(h) is relevant to the present proceedings as there is no requirement under the Convention for the making of an adoption plan, and an adoption plan is only mandatory under the Adoption Act in certain cases (see ss 35(5), 39(4), and 47(1)).

44 Section 90(3) provides:

“(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.”

45 Again, there is no requirement under Regulation 15 (unless it is conveyed by Regulation 15(1)(b)) that the Court be satisfied that the making of an adoption order is clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. That is a matter which it can be expected the Central Authority of the State of origin of the child would consider, pursuant to Article 16 of the Convention, in determining whether the envisaged placement was in the best interests of the child.

46 For these reasons, I consider that the effect of Chapter 4 of the Adoption Act, so far as it applies to the adoption of a child from a Convention country, is substantially different from the effect of the Regulations.

47 Part of the above reasoning has assumed that Regulation 15(1)(b) does not require that Chapter 4 of the Adoption Act be complied with if an application is made by residents of New South Wales to adopt a child from a Convention country. The relevant words are that:

“ This regulation applies … if arrangements for the adoption are made in accordance with … the laws of the State of habitual residence of the person or persons proposing to adopt the child … ”

48 The question is, what is meant by the expression “arrangements for the adoption”? It might be said that all of the adoption process described in Chapter 4 describes the arrangements to be made for the adoption of a child under New South Wales law. In my view, that would not be the correct construction. The expression “arrangements for the adoption” is to be understood in the light of the Convention. The purpose of the Regulations was to enable the Convention to be implemented in Australia. The Convention provides the context for the construction of the Regulations.

49 The meaning of the expression “arrangements for the adoption” is not to be gleaned from the different State and Territory legislation relating to adoption. Such a process would not reveal any consistent use of that expression between the States and Territories. Some States, such as Victoria and Tasmania, deal with certain matters under the heading “Arrangement of Adoptions” Adoption Act 1984 (Vic), ss 20-32; Adoption Act 1988 (Tas), ss 9-17. Those States deal with matters such as consents to adoption, and the making of adoption orders, under different headings. Some States, such as New South Wales, do not use the expression to describe particular parts of their legislation.

50 In my view, the proper construction of Regulation 15(1)(b) is that it requires the Court to consider what are the requirements of the State of habitual residence of the prospective adopting parents, so far as they are applicable under the Convention to the arrangements to be made for the adoption of the child. In particular, the determination of the receiving State under Article 5 of the Convention that the prospective adoptive parents are eligible and suited to adopt, that they have been given counselling as may be necessary, and that the child is, or will be authorised, to enter and reside permanently in the State, must be effected in accordance with the laws of the receiving State. Likewise, any law regulating the preparation of the report by the Central Authority of the receiving State under Article 15 of the Convention must be complied with if Regulation 15(1)(b) is to be satisfied.

51 However, the expression does not mean that all of the requirements of New South Wales law for the making of an adoption order under Chapter 4 must be satisfied.

52 Even if this is not the correct construction of Regulation 15(1)(b), it would not follow that Chapter 4 of the Adoption Act had a comparable effect to that of Regulation 15. Even if Regulation 15(1)(b) required satisfaction of all of the requirements of Chapter 4, nonetheless, there is nothing in the Adoption Act which requires an applicant for an adoption order for a child from a Convention country to show that the arrangements for the adoption were made in accordance with the Convention. It would follow that, on any view, the effect of the Adoption Act is not the same or comparable to the effect of Regulation 15.

53 It is clear from s 103 of the Adoption Act, from the explanatory note to Chapter 5 of the Bill which became the Adoption Act, and from the Minister’s Second Reading Speech, that Parliament intended that the provisions of the Adoption Act should have the same effect, or comparable effect, to Regulation 15. I have set out the terms of s 103 earlier in these reasons. The explanatory note to Chapter 5 of the Bill which became the Adoption Act stated:

“ The Commonwealth Regulations preserved the application of provisions of State law that have effect, or comparable effect, to the Commonwealth. Part 2 (other than Division 4) enacts such State provisions. Provision … is made for … adoptive parents in New South Wales to adopt a child from overseas (clause 107). ”

54 In her second reading speech, the Minister stated:

“ This bill replicates provisions of the Commonwealth’s Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 relating to administration of intercountry adoption services and will bring all adoption arrangements in New South Wales under State legislation. ” (Hansard, LC, 5 September 2000, p 8641.)

55 However, I have concluded that that objective was not achieved. It could have been achieved if s 107 had incorporated both the substantive and the procedural requirements of Regulation 15 as a separate avenue for obtaining adoption orders for children from Convention countries. However, as I have explained above, while s 107 substantially reflected the procedural requirements of Regulation 15(3), it did not incorporate the substantive requirements in Regulation 15(1). The substantive requirements in Chapter 4 are quite different from the substantive requirements of Regulation 15(1).

56 It was submitted for the Director-General that the substantive requirements of the two provisions were comparable. It was submitted that:

“ 20 The NSW Act, like the Commonwealth Regulation, contains procedural and substantive elements:
…
(b) The substantive requirements are:
i. the arrangements accord with usual NSW practices (which in turn accord with the Convention), the adoption laws of NSW (in particular the issues to be addressed in s 90), the laws of the Convention country (via evidence as to the availability of the child for adoption in Australia as well as the approval of the relevant adoption agency in the Convention country, plus the meeting by the applicants of any criteria relating to their suitability to adopt a child from that country);
ii. The Central Authority of the Convention Country agrees to the adoption: s 107(2)(a);
iii. DoCS agrees with the adoption (DoCS being the State Central Authority for NSW): s 31(1)(a) – for either the Director-General must support the application (in that either the Director-General must make the application under s 107), or he or she must agree to arrangements under s 31(1)(a);
iv. the child is allowed to reside permanently in Australia: s 107(2)(b).
…
The effect of the two schemes is the same, or comparable
22. At the level of substance, it is submitted that the State regime is of the same, or comparable effect. Indeed, the most essential elements:
(a) agreement of Central Authority of Convention country;
(b) agreement of State Central Authority;
(c) permanent residence of child;
(d) compliance with the State laws which emphasise the welfare of the child,
are identical . ”

57 However, for the reasons I have given, I do not consider that the requirements are comparable. Even if the “usual NSW practices” referred to by the Director-General accord with the Convention, this would not mean that the provisions of the Adoption Act are the same as, or comparable to, the Regulations. In fact, the “usual NSW practices” in many respects differ from the Convention, as is to be expected. The requirements in relation to the obtaining or (in NSW) dispensing with consents to adoption constitute a notable difference. For the reasons I have given, I do not accept that the requirements of the Adoption Act are identical or similar to the requirements of the Regulations.

Meaning of “Comparable Effect”

58 In Regulation 34, the expression “comparable effect” is used in the sense of similar effect. “Comparable” in this context does not mean “able to be compared”, in the sense that the similarities and differences between the two sets of provisions can be assessed. Little is to be gained from how the word “comparable” has been construed in other contexts. In Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530, Kirby P said (at 540):

“ That brings me to the meaning of the expression ‘some comparable employment’. What does this expression mean in the present context? Dictionary definitions of comparable are not helpful, referring simply to ‘able to be compared with’. Nor are definitions of the verbs ‘compare’ useful for the present context. They refer only to representing as similar or to liken. To give meaning to the expression ‘comparable employment’ in s 11(1)(a) of the Act requires regard to be had to its purpose in appearing there. ”

59 Nonetheless, Lindgren J made the following helpful observations on the use of the word “comparable” in Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564. There, the Full Court of the Federal Court had to construe the words “comparable bargaining power” as used in s 39C of the Industry Research and Development Act 1986 (Cth). Lindgren J said (at 581 [71]-[72]):

“ [71] In my opinion, there is no necessary distinction between ‘able to be compared’ and ‘similar’ as dictionary meanings of ‘comparable’. The reason is that the former immediately raises the question of the meaning of the transitive verb ‘compare’ and its first meaning given in the Oxford English Dictionary is ‘1 trans. To speak of or represent as similar; to liken. Const. to. (With negative, in such phrases as not to be compared to, usually implying great inferiority in some respect.’ Similarly, The Macquarie Dictionary gives as its first meaning:’1 to represent as similar or analogous; liken (fol by to).’ Accordingly, ‘able to be compared’ is well able to bear the dictionary meaning ‘seen to be similar or alike’, or, more directly and simply, ‘similar’ or ‘alike’.

[72] I acknowledge immediately that both dictionaries also give as their second meanings, the neutral noting of similarities and differences between things, but what is presently important is that ‘able to be compared’ is at least equally capable of invoking the first, as it is the second, dictionary meaning of ‘compare’. And in my opinion, it does mean ‘seen to be similar or alike’ or, more directly and simply, ‘similar’ or ‘alike’ in s39C.”

60 The context in which the words “comparable effect” are used in Regulation 34 is the implementation of Australia’s obligations as a signatory to the Hague Convention on Intercountry Adoption. In that context, the expression “having … comparable effect”, should be construed as meaning having a similar effect. The provisions of the Regulations were seen to be the appropriate mode of complying with Australia’s obligations under the Convention. The effect of State adoption laws could always be compared with the effect of the Regulations, no matter how discordant might be the operation of the two sets of provisions. Unless the provisions of State laws for the adoption of children from Convention countries are of the same or similar effect to the Regulations, there would be a risk that Australia would not meet its obligations under the Convention. Accordingly, the application must be considered under Regulation 15, unless the provisions of the Adoption Act have the same effect as, or similar effect to, that regulation.

Scope of the Regulation Making Power

61 The Regulations were made pursuant to s 111C of the Family Law Act, relevant parts of which have been quoted in paragraph [11] above. It was submitted for the Director-General that the regulation-making power under s 111C was to be construed subject to s 69ZK of the Family Law Act. Section 69ZK(2) provides:

“ (2) Nothing in this Act, and no decree under this Act, affects:
(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.”

62 A “child welfare law” means a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of the definition (Family Law Act, s 4). Regulation 12B of the Family Law Regulations 1984 (Cth) provides as follows:

“ Child welfare law – prescribed law of a State or Territory
(1) For the purposes of the definition of child welfare law in subsection 4(1) of the act, each of the following classes of laws is prescribed, namely, any law of:
(a) the State of New South Wales;
(b) the State of Victoria;
(c) the State of Queensland;
(d) the State of Western Australia;
(e) the State of South Australia;
(f) the State of Tasmania;
(g) the Australian Capital Territory;
(h) the Northern Territory; or
(i) the Territory of Norfolk Island;
that relates to the imprisonment, detention or residence of a child upon being dealt with for a criminal offence.
(2) For the purposes of the definition of child welfare law in subsection 4 (1) of the Act, each law specified in Column 2 of an item in Schedule 5, being a law of the State or Territory specified in Column 3 of that item, is prescribed. ”

63 Thirty-eight laws are prescribed pursuant to subregulation 12B(2), including the Adoption Act.

64 It was submitted for the Director-General that, by virtue of s 69ZK(2), the jurisdiction of the Supreme Court to make an adoption order in respect of a child from a Convention country, and the operation of the Adoption Act in relation to such a child, was unaffected by anything in the Family Law Act, including the Regulations purportedly made pursuant to s 111C.

65 Subsection 69ZK(2)(a) is not relevant to the present question. The adoption order will not be one by which “a child is placed under the care of a person”. The children are already under the care of their adoptive parents. The adoption order is of a quite different character.

66 The question is whether the general words in s 69ZK(2)(c) affect the operation of the Regulations, or the consequences of inconsistency between the Regulations and the Adoption Act.

67 It should be noted that the Adoption Act was not in force when the Regulations were gazetted. There can be no question that the Regulations were authorised pursuant to s 111C. That section made specific provision for the making of regulations to give effect to Australia’s obligations under the Convention. While s 111C(4)(b) provided that the Regulations might provide that they did not affect the operation of laws of a State or Territory that related to adoptions, it is clear that the Regulations could do so.

68 In my view, there is a direct inconsistency in the case of adoptions of children from Convention countries by parents resident in New South Wales between the Regulations, and s 107 and Chapter 4 of the Adoption Act. Pursuant to s 109 of the Constitution, the Regulations prevail to the extent of the inconsistency.

69 That was the position when the Adoption Act came into operation. At that time, s 69ZK had nothing to say on the subject. No provisions of the Adoption Act were prescribed as a “child welfare law” until amendments were made in 2003 to Schedule 5 of the Family Law Regulations. The Family Law Amendment Regulations 2003 (Cth) (No. 1) of 18 December 2003 amended Schedule 5 of the Family Law Regulations by substituting for the previous item (which referred to certain provisions of the Adoption of Children Act 1965 (NSW)), certain sections of the Adoption Act. These included s 107, but not s 90 or the provisions in Part 5 of Chapter 4 dealing with the obtaining of consents to adoptions and the dispensing with consents to adoptions. On 1 July 2006, the Schedule was further amended by substituting the whole of the Adoption Act as a “child welfare law” for the purposes of the definition in s 4 of the Family Law Act.

70 Even if the effect of s 69ZK was that nothing done under the Family Law Act, including the making of regulations under s 111C, could affect the operation of the Adoption Act, it would not follow that the Regulations would not take effect according to their terms. That is to say, as the Adoption Act is not a law having the same or comparable effect to Regulation 15, Regulation 15 would operate. However, it is possible that s 69ZK might apply to allow the operation of both the Adoption Act and the Regulations. Whilst that could avoid the consequences of inconsistency if the ground of inconsistency were that the Regulations covered the field, it is difficult to see how such a provision could avoid the consequences of direct inconsistency.

71 However, it is not necessary to explore this question. Section 69ZK provides that “Nothing in this Act” affects the operation of a child welfare law in relation to a child. The section does not provide that nothing done under the Family Law Act affects the operation of such a law, except that it expressly provides that no decree under the Family Law Act has such an effect.

72 There is nothing in the Family Law Act itself, as distinct from the Family Law (Hague Convention on Intercountry Adoption) Regulations, which relevantly has such an effect. It would be a quirk of legislative drafting if the inclusion of the Adoption Act as a child welfare law under a schedule to the Family Law Regulations impinged upon Australia’s implementation of the Convention. In my view, it does not.

73 For these reasons, I conclude that the applications brought by the prospective adoptive parents under Chapter 4 of the Adoption Act, and by the Director-General under s 107 of the Adoption Act, should be refused.

Regulation 15 is Satisfied

74 However, the application under Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations should be granted. The evidence establishes to my satisfaction that, for the purposes of that Regulation, the children to be adopted are to be taken to be habitually resident in a Convention country. The expression “a child who is habitually resident in a Convention country” must refer to a child who was habitually resident in a Convention country when the Convention was invoked leading to permission being given for the child to leave his or her State of origin and to enter and reside permanently in the receiving State (Articles 17, 18 and 19).

75 The prospective adoptive parents are persons who are habitually resident in Australia. I am satisfied that the arrangements for the adoption were made in accordance with the Convention. In particular, the Department of Community Services prepared and supplied to the Inter-Country Adoption Board of the Philippines the report required by Article 15. The Inter-Country Adoption Board of the Philippines was the Central Authority for that State. Reports were also duly prepared in conformity with Article 16 by the Central Authority for the Philippines. It duly gave its approval to the “pre-adoptive placement” of the children.

76 I am also satisfied that the arrangements for the adoption were made in accordance with the laws of New South Wales so far as they relate to the adoption of children from a Convention country. The adoptive parents were selected in accordance with the procedures prescribed by the Adoption Act and the Adoption Regulations.

77 I am also satisfied that the arrangements for adoption were made in accordance with the laws of the Philippines. In particular, there was before me a judgment of the Regional Trial Court of Pasig City committing the children to the care and custody of the Filippino Department of Social Welfare and Development and conferring on it the powers and responsibilities, as legal guardian of the children, the authority to give consent to their placement for adoption.

78 The Inter-Country Adoption Board for the Philippines gave authority in accordance with Articles 15 and 16 of the Convention, and pursuant to s 11 of the Philippines Inter-Country Adoption Act of 1995, for the Department of Community Services to entrust the children with the adoptive parents.

79 The evidence also establishes that the requirements of Regulation 15(3) are satisfied.

80 The applicants also seek orders for approval of the proposed names for the children. As I have said, the order to be made pursuant to Regulation 15(2E) includes a provision for the Court to approve of the child’s names. The Regulations contain no provision equivalent to s 101 of the Adoption Act. It does not appear that there is any constraint upon the Court’s granting approval to the use or change of a child’s name, except, presumably, the best interests of the child.

81 In any event, there is no issue on the present application in relation to the approval of the children’s names.

82 For these reasons, I will make the orders sought in the application under Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations.

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