Re WS - [2016] NSWSC 919

Supreme Court

New South Wales

Medium Neutral Citation: Re WS [2016] NSWSC 919
Hearing dates: 1 June 2016; submissions 8 June 2016
Decision date: 04 July 2016
Jurisdiction: Equity - Adoptions List
Before: White J
Decision:
Refer to para [19] of judgment.

Catchwords: PRACTICE AND PROCEDURE – Adoptions – Application for removal of proceeding to Court of Appeal – order made for separate determination of question of Court’s jurisdiction to make orders for adoption of a child habitually resident in a Convention country where Convention procedures not followed – issue of national significance - desirability of appellate decision – proceeding removed to Court of Appeal
Legislation Cited: Judiciary Act 1903 (Cth)
Adoption Act 2000 (NSW)
Cases Cited: Re S and The Adoption Act 2000 (NSW) (No. 2) (2006) 68 NSWLR 467
Category: Procedural and other rulings
Parties: SS and PH (Plaintiffs)
Attorney General for New South Wales (1st Defendant)
Secretary, Department of Family & Community Services (2nd Defendant)
Separate Representative for the Child (3rd Defendant)
Attorney General for the Commonwealth (4th Defendant)
Representation:
Counsel:
In Person (Plaintiffs)
S Christie (1st and 2nd Defendants)
D McMullen (3rd Defendant)
Z Heger (Attorney General for the Commonwealth)
Solicitors:
n/a (Plaintiffs)
Crown Solicitor (1st and 2nd Defendants)
Legal Aid NSW (3rd Defendant)

File Number(s): A019/2016

JUDGMENT

HIS HONOUR: On 1 June 2016 I ordered that the following question be determined separately and before the further trial in the proceedings, namely:

“Whether the Court has jurisdiction to make the order sought in paragraph 1 of the summons.”

At the hearing on 1 June 2016 the second plaintiff asked me to refer that question to the Court of Appeal. No prior notice of the application had been given and I directed that within seven days the defendants were to serve and were to provide my associate with written submissions, if they wished to do so, on the question of whether I should remove the question referred to to the Court of Appeal pursuant to r 1.21 of the Uniform Civil Procedure Rules. I made orders for the service of written submissions in relation to the question and fixed the question for hearing before me on 3 August 2016, subject to any order that might be made referring the question to the Court of Appeal. I directed that the parties’ submissions identify what evidence would be relied upon relevant to the determination of the separate question.
The circumstances giving rise to the formulation of the separate question appear from my reasons of 1 April 2016 in which I directed the Registrar to give notice to the Attorneys General for the Commonwealth and New South Wales inviting them to consider intervening in the proceedings or seeking to appear as friends of the Court. Subsequently notices under s 78B of the Judiciary Act 1903 (Cth) were given and the Attorneys General for New South Wales and the Commonwealth have appeared, as has the Secretary of the Department of Family and Community Services. They neither consent to nor…

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 WS

Details

AGLC: Re WS [2016] NSWSC 919
Case: [2016] NSWSC 919
Decision Date: 04 July 2016

CaseChat Overview and Summary

The case involves an application for the removal of proceedings to the Court of Appeal, concerning the adoption of a child who is habitually resident in a Convention country. The application was brought by WS, who sought to challenge the decision of the Family Court of Australia regarding the adoption. The central dispute was whether the Court had the jurisdiction to make orders for the adoption when the Convention procedures were not followed.

The primary legal issue before the court was whether the Family Court had jurisdiction to make adoption orders in cases where the child was habitually resident in a Convention country and the Convention procedures were not adhered to. Additionally, the court needed to determine if the matter had an issue of national significance that warranted the desirability of an appellate decision, thus justifying the removal of the proceedings to the Court of Appeal.

The court considered the importance of the issue at hand and recognised that it had implications beyond the immediate parties involved. It found that the question of jurisdiction over adoptions where Convention procedures were not followed was of significant national interest. The court also concluded that an appellate decision on this matter would be beneficial in clarifying the legal framework and guiding future cases. Consequently, the court exercised its discretion to remove the proceedings to the Court of Appeal for a separate determination of the jurisdictional question. The court's reasoning underscored the need for a higher court to address the complex issues raised in this case.

Orders