Re WJP and the Adoption Act 2000 - [2014] NSWSC 783

Supreme Court

New South Wales

Case Title: Re WJP and the Adoption Act 2000

Medium Neutral Citation: [2014] NSWSC 783

Hearing Date(s): 7 March 2014

Decision Date: 12 June 2014

Jurisdiction: Equity Division

Before: Kunc J

Decision:
Consent dispense order and order for adoption made

Catchwords: FAMILY LAW - Adoption -Order dispensing with consent - Whether Korean birth parents cannot, after reasonable inquiry, be found or identified - Adoption through intervention of Korean state sponsored agency - Adoption Act 2000 (NSW), s 67(1)(a)

Legislation Cited: Adoption Act 2000 (NSW)

Cases Cited: Application C and C; re Y [2014] NSWSC 634
In the Matter of N and the Adoption Act 2000 [2012] NSWSC 1263
Re K and The Adoption Act 2000 [2005] NSWSC 858
Re KSE and The Adoption Act 2000 [2006] NSWSC 92

Category: Principal judgment

Parties: Department of Community Services

Representation

- Counsel: Counsel: T. Stevens

- Solicitors: Solicitors: Crown Solicitor

File Number(s): 164/2013

Publication Restriction: No

JUDGMENT

Summary

By summons filed on 14 November 2013 the plaintiffs apply for an order for the adoption in their favour of a child to whom I shall refer as "WJP".
Subject to the resolution of the issue which is dealt with in these reasons, the Court is satisfied that it is in the best interests of WJP that he be adopted by the plaintiffs. The plaintiffs seek an order under s 67(1)(a) of the Adoption Act 2000 (NSW) (the "Act") dispensing with the consent of WJP's natural parents to his adoption and consequential orders.
When these proceedings were first referred to me in chambers I was not satisfied on the evidence, as it then stood, that there was a proper basis for an order to be made under s 67 of the Act. Directions were made for the filing of further evidence and for submissions. Having reviewed that further evidence and the written submissions dated 18 May 2014, the Court is satisfied that the orders sought under s 67(1)(a) of the Act and for adoption and consequential orders should be made.

The facts

In July 2010 the plaintiffs lodged with the NSW Department of Community Services (the "Department") an application to adopt a child from overseas, preferably Korea. Following its investigations, the Department informed the plaintiffs that they had been approved to adopt a child from Korea and that a confidential home report on their circumstances would be forwarded to the Eastern Social Welfare Society ("ESWS") in Korea, an agency approved by the Korean Government to conduct inter-country adoptions.
WJP was born in Seoul, Korea on 19 February 2011.
On 31 March 2011, in accordance with Korean law, the President of ESWS was named as WJP's guardian. As I infer that it was entitled to do under Korean law, the ESWS issued a certificate of birth in relation to WJP which gives no details as to the identity of either natural parent.
In October 2011 the plaintiffs were told about WJP by an officer of the Department. They completed various documents…

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: [2014] NSWSC 783
Decision Date: 12 June 2014

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re WJP and the Adoption Act 2000 involved a dispute over the adoption of a child by Australian parents. The child, a Korean national, was placed for adoption through a state-sponsored agency in Korea. The primary issue was whether the court could dispense with the need for the consent of the child's Korean birth parents, as mandated by section 67(1)(a) of the Adoption Act 2000 (NSW), given that extensive efforts had failed to locate or identify the parents.

The court was required to determine if the reasonable inquiry into the whereabouts of the birth parents had been adequately conducted and if the absence of their consent could be justified under the Act. The matter hinged on the interpretation of "reasonable inquiry" and whether the efforts made by the Korean agency and the Australian parents were sufficient to conclude that the birth parents could not be found or identified. Additionally, the court needed to consider the role of the state-sponsored agency in the adoption process and its implications for the application of the Act.

The court found that the inquiries made by both the Korean agency and the Australian parents were extensive and reasonable, given the complexities of locating individuals in a foreign country. The court concluded that the efforts made were sufficient to meet the threshold of "reasonable inquiry" under the Act. It was held that the Korean birth parents could not be found or identified after such efforts, thereby justifying the court's decision to dispense with their consent. The court granted the adoption application, emphasising the importance of the child's best interests in the adoption process.

The court made an order approving the adoption of the child by the Australian parents. The order recognised the thoroughness of the inquiries made and the lack of any viable alternative to proceed with the adoption. The decision underscored the importance of considering the best interests of the child in complex international adoption cases.

Orders