Re WS (No 2)

[2017] NSWSC 475

Supreme Court

New South Wales

Medium Neutral Citation:	Re WS (No 2) [2017] NSWSC 475
Hearing dates:	21, 22, 23 February 2017
Date of orders:	27 April 2017
Decision date:	27 April 2017
Jurisdiction:	Equity
Before:	Hallen J
Decision:	In answer to the separate question, the Court does have jurisdiction to hear and determine the Plaintiffs’ Summons for adoption. As at the date of her move from Thailand to Australia, being 6 March 2016, the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption did not apply, because WS, then, was not a child habitually resident in one Contracting State (Thailand) who has been, is being, or is to be, moved to another Contracting State (Australia) either after her adoption in the State of origin by spouses or by persons habitually resident in the receiving State (Australia), or for the purposes of such an adoption in the receiving State (Australia) or in the State of Origin (Thailand).
Catchwords:	FAMILY LAW & CHILD WELFARE – Adoption – Separate question to be determined - Whether Court has jurisdiction to make order for adoption FAMILY LAW & CHILD WELFARE – Adoption –Prospective adoptive parents sought adoption of child relative from Thailand – Thailand and Australia are parties to Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption – Prospective adoptive parents made application pursuant to Chapter 4 Adoption Act 2000 (NSW) – Did not make application under Regulation 15 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) –– 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 – Unnecessary to decide whether Adoption Act has same or comparable effect to Commonwealth Regulations – Unnecessary to decide whether child is a non-citizen child.
Legislation Cited:	Adoption Act 2000 (NSW) Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) Family Law Act 1975 (Cth) Immigration (Guardianship of Children) Act 1946 (Cth) Judiciary Act 1903 (Cth) Migration Regulations 1994 (Cth) Uniform Civil Procedure Rules 2005
Cases Cited:	Adoption of BW [2017] NSWSC 174 Application of ARD and RGD; re FGG and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) [2014] NSWSC 1963 Application of MGO and AAO; re LDC [2011] NSWSC 951 B v D [2008] EWHC 1246 BA (A Minor) (Hague Convention: habitual residence: consent: acquiescence) [2016] NIFam 8 C v S (minor: abduction: illegitimate child) [1990] 2 All ER 449 CSK v Secretary, Department of Family and Community Services [2016] NSWCATAD 292 H v H (1995) 13 FRNZ 498 (HC) In the matter of A (Children) [2014] AC 1; [2013] UKSC 60 LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 Punter v Secretary for Justice as the New Zealand Central Authority [2004] NZLR 28 Punter v Secretary for Justice [2007] 1 NZLR 40 Re A (Wardship: Jurisdiction) [1995] 1 FLR 767 Re Adoption Application by KGC and TGC [2007] NZFLR 851 Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606; [2016] UKSC 4 Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC 562 Re KL (A Child) (Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2014] AC 1017; [2013] UKSC 75 Re LC [2014] UKSC 1 Re P-J (Children) (Abduction: Consent) (2010) 1 WLR 1237 Re S and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438 Re Susan [2009] NSWSC 592 Re WS [2016] NSWSC 919 SFH and MEM [2008] NZFC 170
Texts Cited:	Macquarie Dictionary Online, 2016, Macquarie Dictionary Publishers OED Online. Oxford University Press, March 2017
Category:	Principal judgment
Parties:	Ms SS (first Plaintiff) Mr PGH (second Plaintiff) Separate Representative for the Child Secretary, Department of Family & Community Services (first Defendant)  Attorney General for New South Wales (second Defendant) Attorney General for the Commonwealth (Intervener)
Representation:	Counsel: In Person (Plaintiffs) Ms S Christie (first and second Defendants) Ms Z Heger (Intervener) Ms D Ward (child WS)   Solicitors: N/A (Plaintiffs)  Australian Government Solicitor (Intervener) Crown Solicitor’s Office (1st and 2nd Defendants)
File Number(s):	A019/2016

Judgment

1. HIS HONOUR: By Summons (which was numbered A19/2016) filed on 7 March 2016, the first and second Plaintiffs, SS and PGH, a married couple, seek an order under the Adoption Act 2000 (NSW) (“the Act”), for the adoption of a child to whom the Court will refer to as “WS”. They filed an amended Summons on 24 January 2017, which, they say, was required as a result of orders made by White J (as his Honour then was) on 21 December 2016.

2. The application to the Court has not been made by the Plaintiffs under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“the Regulations”). I shall refer to these proceedings as “the 2016 proceedings”.

3. Somewhat impersonally, I shall continue to use initials for each of the Plaintiffs, the child, and for the mother and father of the child, as each is “a person affected by an adoption application”, in order to preserve her, and his, anonymity, as is required by s 180 of the Act and/or under Regulation 15.

4. Because of the date on which the Summons was filed, Supreme Court Practice Note SC Eq 13, which “applies to proceedings under the Adoption Act 2000 … and proceedings under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“the Hague Convention Regulations”) (“adoption proceedings”)” does not apply to this case. The Practice Note, which was issued on 24 May 2016, commenced on 1 July 2016.

5. On 1 June 2016, White J ordered the determination of the following separate question pursuant to Uniform Civil Procedure Rules 2005 (UCPR) rule 28.2:

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

6. Described in a way that disguises the complexity of the issues, the parties, initially, seemed to agree that the hearing related solely to the issue of establishing, as a finding of fact, where WS was habitually resident, and, as a matter of law, at what date the question of her habitual residence fell to be decided.

7. It should be understood that the Court, in this part of the proceedings, will not determine whether the adoption of WS in favour of the Plaintiffs should be made.

8. In addition, SS and PGH filed a Summons (which was numbered A004/2017) on 29 December 2016 (although the date of filing may be in dispute) and an amended Summons on 24 January 2017, seeking the same limited relief. I shall refer to these proceedings as “the 2017 proceedings”. The parties agreed that the questions raised in the 2017 proceedings should not be determined as part of the hearing of the 2016 proceedings, which was before this Court for determination. Therefore, the 2017 proceedings will be adjourned until the date, to be advised, on which the reasons for judgment in the 2016 proceedings will be delivered. I shall then allow the parties to consider what should be done in relation to the 2017 proceedings.

9. In April 2016, no doubt mindful of the unusual nature of the 2016 proceedings, and the potential issues raised by them, White J directed the Registrar of the Court to give notice to the Attorney General for the Commonwealth, and for New South Wales, inviting each to consider being joined as a party intervening in the proceedings, or seeking to appear as a friend of the Court. Subsequently, notices under s 78B of the Judiciary Act 1903 (Cth) were served.

10. In the 2016 proceedings, the Secretary, Department of Family and Community Services, is the first Defendant, having been joined to the proceedings on 4 May 2016; the Attorney General for New South Wales is the second Defendant, also having been joined on 4 May 2016; and the Attorney General of the Commonwealth is described in the proceedings as the “Intervener”.

11. WS is separately represented. Pursuant to s 122(2)(b) of the Act, the Court ordered the appointment of an Australian legal practitioner for her as it appeared that she needed to be represented in the proceedings. Her legal representatives, in accordance with s 122(3) of the Act, have ensured that the views of WS have been placed before the Court and that all relevant evidence is adduced, and, where necessary, tested.

12. (Section 122(4) of the Act provides a rebuttable presumption that a child who is not less than 10 years of age is capable of giving proper instructions to her legal representative. There is no suggestion that the presumption, in the present case, has been rebutted. WS, however, was not present during the hearing.)

13. SS and PGH did not appear with legal representation at the hearing. (They had the assistance of senior and junior counsel in the Court of Appeal proceedings, to which I shall refer, and Counsels’ written submissions, made to the Court of Appeal, were referred to, and relied upon, at the hearing by them.)

14. At the commencement of the hearing, in answer to a question from the Bench, SS indicated that she wished PGH to speak on her behalf, and he did so throughout the hearing. He was highly articulate and presented their case in writing, and orally, with some ability. (On the third day of the hearing, SS was not present but, as a matter of courtesy, she had informed the Court that she would be unable to appear.) The first and second Defendants appeared by Ms S Christie of counsel; the Attorney General for the Commonwealth appeared by Ms Z Heger of counsel; and WS appeared by Ms D Ward of counsel.

15. I have had the benefit of detailed written and oral submissions, the former of which were provided to me promptly and as directed. The written submissions will, of course, remain in the Court papers.

16. The Plaintiffs, and all of the legal representatives involved in these proceedings, have played a part in providing the submissions, and other assistance, to the Court in the preparation for, and at, the hearing. It would be remiss of me not to express my gratitude for the assistance provided by PGH, who conducted the hearing on behalf of the Plaintiffs, to the best of his ability, and to all of the legal representatives of the other parties who appeared.

Preamble to the Hearing

17. At the hearing before White J on 1 June 2016, PGH made an application that the separate question be referred to the Court of Appeal. The hearing of that issue was fixed before his Honour on 3 August 2016, subject to any order that might be made referring the question to the Court of Appeal. In addition, his Honour made directions regarding the service of submissions.

18. In the reasons for judgment, which his Honour delivered on 4 July 2016, bearing the medium neutral citation Re WS [2016] NSWSC 919, White J ordered that the proceedings be removed to the Court of Appeal, noting, at [4] – [6] and [12], that:

“The Attorney General of the Commonwealth has foreshadowed that he will submit that regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations applies to the proposed adoption of WS and that the operation of the Regulation is not avoided because the plaintiffs have not satisfied the requirements of the Convention. The Attorney General for the Commonwealth has also foreshadowed that he will submit that Chapter 4 and s 107 of the Adoption Act 2000(NSW), in their application to the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who is or are habitually resident within the State (within the meaning of those words in s 107), are inconsistent with reg 15 of the Hague Regulations, as I found in Re S and the Adoption Act 2000 (NSW)(No. 2) [2006] NSWSC 1438; (2006) 68 NSWLR 467 at 480. That case has been followed in subsequent first instance decisions. The Attorney General will submit that even if there is no inconsistency, it is a necessary precondition to the making of the orders set out in para 1 of the summons that the requirements of s 107 of the Adoption Act 2000 (NSW) be satisfied.

The Secretary of the Department of Family and Community Services and the Attorney General of New South Wales have provided written submissions on the preliminary question. They submit that a purposive construction should be given to regulation 15(1) consistent with Australia’s obligations pursuant to the Convention. They submit that the Court’s jurisdiction to hear and determine applications for adoption of children habitually resident in Convention countries arises under regulation 15 and not otherwise.

I understand that the plaintiffs are likely to submit that by its terms, regulation 15 does not apply in the circumstances of the present case, that regulation 15 does not cover the field, and that contrary to my decision in Re S and the Adoption Act 2000 (NSW) (No. 2) there is no inconsistency between the Family Law (Hague Convention on Intercountry Adoption) Regulations and the Adoption Act because the provisions of the Adoption Act make comparable provision to the Regulations or because regulation 34(2) applies in any event. As noted in my reasons of 1 April 2016 I also apprehend that the plaintiffs will submit that s 107 of the Adoption Act is facilitative and not exhaustive.

...

…The plaintiffs’ application raises an important question that has implications, not only in New South Wales, but throughout Australia, in relation to the adoption of children habitually resident in Convention countries. It is a question upon which it would be desirable to have appellate authority.”

19. On 21 November 2016, the Court of Appeal, constituted by Bathurst CJ, Beazley P, and White J, determined that, whilst the proceedings concerned matters of general importance, it was inappropriate for the Court of Appeal to embark on the consideration of the separate question, since it appeared to be common ground between the parties that the resolution of the issues would depend on the resolution of a contested factual issue relating to the habitual residence of WS, and the date on which habitual residence is to be determined. The Court of Appeal declined to answer the separate question and remitted the matter to the Equity Division for further hearing.

20. Following the referral back, the matter was listed before Bergin CJ in Eq, but following her Honour’s retirement, it was referred to this Court for hearing.

The Issues

21. On the third day of the hearing, the Court was provided with an agreed document, in relation to the separate question, that set out the following issues which the Court was requested to answer:

“1. For the purposes of s 107 of the Adoption Act 2000 (NSW) and reg 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), at what point in time does WS’s habitual residence fall to be determined?

2.    Was WS habitually resident in Thailand at that time?

3. If the answer to 2 is no, then no further questions are necessary, and the Court will have jurisdiction to entertain the plaintiffs’ summons under s 23 of the Adoption Act.

4.    If the answer to 2 is yes, then:

(a) Does s 107 of the Adoption Act apply to the proposed adoption?

(i) Does s 107 only apply to “non-citizen children” as defined in the Adoption Act and, if so, is WS a non-citizen child?

(ii) If s 107 applies, the constitutional issue referred to at 4(c) below does not arise since the provisions of s 107 have not been satisfied nor is it suggested that they will be satisfied.

(b) If the answer to 4(a) is no, does reg 15 of the Hague Regulations apply to the proposed adoption?

(c) If the answer to 4(b) is yes, is the Adoption Act operative in its application to the adoption of WS?

(i) Does the Adoption Act have comparable effect to reg 15 within the meaning of reg 34?

(ii) Is the Adoption Act inconsistent with reg 15 within the meaning of s 109 of the Constitution?

(iii) What is the effect of s 69ZK of the Family Law Act 1975 (Cth)?”

22. Some of these issues arise because there are several decisions of the Court in which consideration has been given to the interplay between the provisions of the Act and the Regulations, in that both appear to provide competing sources of jurisdiction in the Court to make an adoption order, in respect of a child formerly habitually resident in a Convention country.

23. At the hearing, PGH, and also counsel for WS, submitted that, in the Court’s consideration of the second issue, it was not necessary to determine whether, at the relevant time that habitual residence falls to be determined, (which was also submitted to be 6 March 2017), WS had gained habitual residence in Australia, only that her habitual residence, in Thailand, had been lost (T77.15 - T77.28; T85.20 - T85.21; T87.16 - T87.18), a distinction which was later agreed to by counsel for the Intervener (T111.2 - T111.6).

Background Facts

24. The following facts appear to be uncontroversial. I have taken some of them from a document headed “Further Revised Agreed Statement of Facts in Relation to the Separate Question”, signed by the parties, or by his, or her legal representative, and by the legal representative of the Intervener, and of WS, the original of which was dated 21 February 2017, and tendered as Ex. A.

25. I have also taken some of the facts from the affidavit evidence read (which formed part of the Amended Court Books (Ex. B1 and Ex. B2), and the documents tendered at the hearing, where it is clear that the facts stated are not in dispute.

26. To the extent that any of the facts set out below are contentious, those facts should be regarded as the findings of the Court based upon the acceptance of the evidence that I have read and heard. (In this regard, each of the Plaintiffs was cross-examined by counsel for the first and second Defendants. Neither WS, nor her parents, were cross-examined, even though each had affirmed an affidavit that was read at the hearing.)

27. WS was born in Thailand, in the north eastern province of Kalasin, in September 1999, and so is, now, almost 17 years and 8 months of age. She is, therefore, a person who was less than 18 years of age on the date on which the Plaintiffs made the application for the order for adoption. She is a citizen of Thailand.

28. CS (her father) and BS (her mother) are the parents of WS. Both are alive. CS is the brother of SS. WS has one brother, N, who is 21 years of age. She has two living grandparents. All of these persons are citizens of Thailand and each has resided, and continues to reside, there. WS has another aunt, NN, who lives in Australia.

29. PGH is the husband of SS. They were married to each other in December 2010. The order for adoption is sought by them jointly as the adoptive parents. (They are “a couple” within the meaning of that term in the Dictionary to the Act.)

30. SS, who was born in Thailand in April 1976, has been an Australian citizen since 26 January 2016. PGH has been an Australian citizen since his birth in January 1961.

31. SS and PGH currently reside, and have resided, together, in New South Wales since about September 2010. Each had been married previously. They met, on social media, sometime in 2009; they met in person, about 6 months later, in Thailand; SS came to Australia and stayed for 4 months and they were subsequently married, in New South Wales, in December 2010.

32. SS returned to Thailand shortly after the marriage but was able return to Australia in June 2011. SS and PGH had a traditional Buddhist wedding, in Thailand, in December 2012.

33. SS has no children by her marriage to PGH, or from her prior marriage. PGH has two children from his prior marriage, each of whom is now an adult. He has one grandchild. WS has met, and has socialized with, all of them.

24. WS lived in Thailand since her birth until she came to Australia at the different times to which reference will be made. She was, primarily, raised by her paternal grandparents, as CS and BS travelled around the country to secure work. She described a particularly close relationship with her grandfather. She wrote that her contact with her parents was “Once a year for a week”.

25. WS also described the role played by SS in her life. SS had lived with WS in the home of WS’s grandparents until WS was aged 8 or 9 years old. She ranked her aunt’s role as nearly as significant as the role played by her grandparents. WS stated in her affidavit:

“Since I was born I have been very close to my aunty. Even my name, she was the person who gave me my name when I was born. When she had a day off, she visited me. When I had a holiday or time, I visited her. She always send me money. She collects things like toys, clothes and visits me and give those to me.”

36. In relation to the statement quoted, I infer that the period to which WS is referring is when they both lived in Thailand. This is not to say, however, that their close relationship did not continue after SS came to Australia. Reference will be made to the relationship, following SS coming to Australia later in these reasons.

37. When she was 12 years of age, WS gained a scholarship to a selective school that was some distance away (said to be 80 km, or a 2 hour’s drive) from her grandparents’ home. She then left that home and moved to a bedsitter, alone, close to that school, where she stayed during the school week. (Her cousin and, for a short time, a family friend, would keep an eye on her and her grandparents were available if the need arose.) However, from the end of 2013, WS was living alone and, for the most part, unsupervised fully.

38. SS continued to be involved in WS’s life whilst WS was living in Thailand and SS was living in Australia. She and PGH financially assisted the family. They paid WS’s school fees, accommodation and living expenses, and also paid for the family friend to supervise, and regularly check on, WS whilst she was living away from her grandparents.

39. In her affidavit, WS added that SS “would call me most days while I was living in the boarding house to check to see how I was”.

40. In January 2014, CS and BS, in writing, appointed SS and PGH to be the “authorised guardians” of WS “in all matters relating to her travelling to, and staying in, Australia” with “the same authority as our own actions”.

41. WS was issued with a Thai passport in March 2014. It will expire in March 2019.

42. On 23 April 2014, WS, with the assistance of PGH and SS, made an application dated 16 April 2014, to the Australian Department of Immigration and Border Protection for a Sponsored Family Visitor Visa (part of Ex. C). The “authorising sponsor” was SS. Each of her parents, CS and BS, consented to the grant of the visa to WS, in writing, on 1 May 2014 (part of Ex. C).

43. The Department granted the visa on 19 May 2014. WS was required to arrive in Australia before 19 August 2014 and the “stay period” was 5 months from the date of arrival. The visa conditions included “No Work”, “Maximum 3 months study”, “No further stay” and “Must leave before visa expiry”.

44. Following the grant of this visa, WS came to Australia on 4 June 2014 and stayed with SS and PGH, in their home, until 4 November 2014. She then returned to Thailand. She complied with the conditions stated in the visa.

45. On 29 August 2014, whilst WS was still in Australia, SS and PGH filed, in the Family Court of Australia, an application for parenting orders under the Family Law Act 1975 (Cth) in relation to WS. (By s 64C of the Family Law Act, a parenting order may be made in favour of a parent of the child "or some other person". A “parenting order” is defined in s 64B(2) of the Family Law Act and may deal with, amongst other things, “(a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; and … (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. Under sub-s (3), without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.)

46. On 15 October 2014, following a hearing of the application, in which CS and BS gave evidence by telephone, Benjamin J made the following orders (inter alia):

“[WS] (born 5 September 1999) live with SS and PH (the aunt and the uncle).

The aunt and uncle have parental responsibility for the child.

[CS and BS] (‘the parents') shall communicate with the child as agreed between the child and the parents which communication shall comprise of weekly telephone/Skype calls.

The child shall spend time with the parents at least one month per year in either Australia or Thailand.

…

BY CONSENT the financial expenses for spending time with the child shall be borne by the aunt and uncle.”

47. The orders in the Family Court were made with the consent of CS and BS.

48. There is a reference, in the reasons for decision of Benjamin J, at [18] – [19], to “copies of documents in relation to this application were forwarded to the New South Wales Department of Family and Community Services, together with copies of the evidence and details asking them if they wished to intervene in the proceedings…. A reply was received on 26 September 2014 and the Department of Family Community Services has decided not to intervene in these proceedings, at this time, given that they hold no records in relation to the child and have no concerns in relation to this parenting application”.

49. Benjamin J also noted, at [20]- [21] of the reasons, that:

“[T]here was no issue that the Court had both the jurisdiction and the power to make parenting orders pursuant to the provisions of the [Family Law] Act.

[W]hen determining parenting orders, the approach is governed by Part VII of the [Family Law] Act.”

50. WS gave evidence that following the orders of the Family Court, SS and PGH became her “guardians”. Statements made by her to Mr B L Bembrick, a Client Assessment and Referral Consultant employed by Legal Aid to prepare a report on behalf of WS for the purpose of these proceedings, and whose affidavit was also read in the proceedings, were not objected to. Mr Bembrick was not cross-examined.

51. When interviewed in December 2016, WS is reported to have said to Mr Bembrick:

“They give me recommendations about where I study, but give me a choice to select on my own. According to my understanding my aunt and uncle offered me a place to stay and I was able to make a decision about whether I wanted to live here. I knew they were my guardians and could make decisions regarding what I needed, for example, doctors. I was happy with that.”

52. Between November 2014 and March 2016, as set out below, a number of applications made for different visa classes were made on behalf of WS. This suggests that an intention by the Plaintiffs, and WS, to have WS return to Australia, had crystallised.

53. On about 6 November 2014, WS lodged, or there was lodged on her behalf, with the Australian Embassy in Bangkok, an application dated 18 October 2014, for a permanent visa under the Migration Regulations 1994 (Cth), namely a Child (Migrant) (Class AH) visa, subclass 117 (Orphan relative) on the basis that WS “is an orphan relative of an Australian citizen” (Ex. 1D6).

54. In the application made, under the heading “Child’s country of current residence” (Question 13), SS inserted “Thailand (Family Court Order to live in Aust Aunt/Uncle). In responding to Question 32 (relating to whether WS had “previously been to Australia, held, or currently holds, a visa for travel to or stay in Australia”, the answer was “Yes” and the “purpose of the stay in Australia” was given by WS as “To visit my Aunts and Uncle & sample life in Australi(a)”. (It appears that the “a” was cut off and does not appear in the available space.)

55. It was accepted that PGH and SS had prepared the application together and that WS had signed it before she returned to Thailand.

56. Although there was some dispute, by PGH, about whether the response to Question 32 was complete, I am satisfied that it accurately answered the question posed. I am fortified in reaching this view by reference to evidence of a statement made by WS to Mr Bembrick, namely that SS had asked her, in about 2014, and prior to her coming to Australia, whether she would like to see Australia:

“She (Aunty Tarn) said get a tourist visa, and she said let’s see how it goes. My parents and I talked together and all agreed. I was happy. She asked me how I felt after the first visit and I said I like it. I want to come back and study.” And “When I first came here I went to TAFE to study for about 10 weeks.”

57. Mr Bembrick also stated that WS had informed him that after her first visit, SS had contacted her family to discuss the future. In her words:

“She called and talked to my Mum, everyone in the family about bringing me here in Australia and start an English course.” [WS] said: “I was really excited I couldn’t sleep that night.”

…

[WS] said her aunt had told her she was going to “send me to a school for English and then to try to study at high school. To learn English and to go to school here in Australia is what I understood was the reason to come here and I was happy. I wanted to learn English, so I was happy to go to TAFE. I made a lot of friends.”

58. SS completed the primary document, dated 18 October 2014, with the heading “Sponsorship for a child to migrate to Australia” (Ex. 1D4). However, it appears that PGH also provided an additional sponsorship form.

59. As stated, WS left Australia, and returned to Thailand on 4 November 2014. She did not return to Australia until 7 March 2016.

60. On about 2 January 2015, the application for the Child (Migrant) (Class AH) visa, subclass 117 (Orphan relative) was refused.

61. In the reasons for decision, the decision maker wrote (inter alia) (Ex. A):

“As the decision maker on a Class AH, Child (Migrant Visa) I must consider the applicant against all the subclasses within this visa class.

Subclass 101

As the applicant is not the biological or adopted child of the sponsoring parent, the applicant does not meet the requirements for the grant of a subclass 101 Child visa.

Subclass 102

As the applicant has not been adopted or in the process of being adopted by the sponsor, the applicant does not meet the requirements for the grant of a subclass 102 Adoption visa.”

62. Following the decision, and in light of the decision, it appears that SS and PGH determined to adopt WS (Ex. A).

63. By application generated on 25 November 2014 (part of Ex. C), WS (through PGH) also made an application for a Visitor Short Stay Visa. The application stated that the proposed period of the stay in Australia was sought to be between 1 January 2015 and 31 December 2015. It was submitted that WS would undertake a course of study in Australia for the year and the High School she was to attend was identified. Other reasons for travel were for tourism and a family visit.

64. By letter dated 11 December 2014 sent to the Plaintiffs, the Department of Immigration and Border Protection informed WS, that the application for a Visitor Short Stay Visa had been refused. The Decision Record set out the reasons for the refusal (part of Ex. C). Notably, these reasons included that:

“An examination of your immigration history in Australia also shows that of the last 6 months, you have been in Australia for a total of 154 days…..Visitor policy states that in considering whether an applicant is a genuine visitor, decision makers should consider whether the applicant is attempting to circumvent proper migration channels and use the visitor visa program to maintain ongoing residence in Australia…..I am not satisfied that your intention to only visit Australia is genuine.”

65. On 23 December 2014, WS, through PGH, made another application, dated 19 December 2014, for a Visitor (class FA) Visa (subclass 600) Sponsored Family Stream. The request made was for a visa for 12 months, the reasons stated being to live with her Australian family and study in Australia whilst her application for a Child (Class AH) Orphan Relative visa was being processed.

66. The answer to Question 24 on this application, regarding the reason/s why WS wished to visit Australia, was as follows:

“Waiting on outcome of a CHILD (Class AH) ORPHAN RELATIVE (Subclass 117) visa application File Reference 2014003707.

The Family Court of Australia has ordered the visa applicant live with her Aunt and Uncle in Australia. I wish to return to comply with that Order.

I also wish to return to my high school [identified] NSW before the 2015 school year commences. I was forced to interrupt my year 8 schooling to comply with the conditions of my prior Sponsored Family Visit visa to return to Thailand and apply for the pending Subclass 117 visa.

We have been advised the Subclass 117 visa may take 10-14 months to process.

In the meantime I need to attend my 2015 high school year. I am therefore asking for a waiver of Visa condition 8201 to allow me to study for the full school year, and so my parents are not breaking the NSW laws requiring me to attend school.”

67. By letter dated 18 February 2015, sent to the Plaintiffs, the Department of Immigration and Border Protection, informed WS, that the application for a Visitor Visa (subclass 600) Sponsored Family Stream had been refused.

68. The Decision Record set out the reasons for the refusal (part of Ex. C), noting that the decision maker was not satisfied that “her true intention is only for a genuine visit to Australia.” It was noted that the application for the Orphan Relative visa had been refused on 2 January 2015.

69. On 27 May 2015, WS made an application for a Visitor (Class FA) Visitor (Sponsored Family) visa. The visa application stated that the reasons for visiting Australia are:

“Study, visiting family, continuation of residence orders of the Family Court in so far as the visa will allow. Parties will be applying to adopt the applicant following which an adoption visa application will be made”.

70. WS, who was identified as the applicant in the application, stated that she intended to undertake a course of study for some of Year 9, Term 3, and all of Term 4, for a total period of 13 weeks and that she would be fully supported by SS and PGH.

71. PGH wrote a letter dated 27 May 2015 to the Department (Ex. 1D3) requesting that the visa be approved without a “No further stay” or similar conditions, as he and [SS] were:

“…hoping to successfully apply for an Orphan visa for [WS] when she [had] returned to Thailand with my wife at the conclusion of her last stay. Unfortunately the substantive visa application was refused and the decision record, with subsequent legal advice, made it clear we need to formally adopt [WS] to successfully bring her to Australia permanently … If you can help us bring her back to Australia. So we can to [sic] formally adopt her during her visit, we would be most grateful”.

72. This application was refused on 16 June 2015. As had been identified in previous decisions, the reasons (Ex B1) included that:

“…the applicant’s reason for travel is inconsistent with the length of stay requested [being 6 months] and therefore have concerns that the applicant may intend to travel to Australia for reasons other than a genuine temporary stay….it is the expressed intention of the applicant to stay to study here and remain permanently with her Australian family members in Australia”.

73. SS and PGH then made an application for a review of the decision made by the delegate of the Minister to refuse to grant the visa. The hearing of the application for review which was heard in the Migration & Refugee Division of the Administrative Appeals Tribunal, took place before Member B Mericourt, on 13 October 2015. The Tribunal concluded that the matter should be remitted for reconsideration.

74. In the Statement of Decision and Reasons, the learned Member noted:

“15.    They applied for a family sponsored visitor visa for a period of almost 6 months to allow sufficient flexibility for the visa applicant to be accompanied by a relative for her travel from Thailand to Australia and then to attend school for one term and return to Thailand accompanied by a relative. As she lives 600 km from Bangkok they do not want her to travel on her own from there to Australia and back. The last time she came to Australia they paid for someone to accompany her.

16.   The review applicant acknowledged that it was his intention in the long term to have the visa applicant remain in Australia permanently but that they had no intention that she would breach her visa conditions on her visitor visa as they do not wish to jeopardise either her permanent application in the future or any future applications for visitor visas for his wife’s relatives. He stated that he has always been a law-abiding citizen and as a former employee of the Department of Defence is well aware of his niece’s obligations to comply with her visa conditions and with security issues related to Australia’s borders.

17.   The review applicant acknowledged that as part of he and his wife’s plans to have their niece reside in Australia permanently they intend to file an application with the Supreme Court for her adoption as soon as the visa applicant arrives in Australia. The Family Court order does not satisfy the requirements for adoption and unfortunately they received poor advice prior to applying for the Orphan Relative visa. It is necessary for his niece to be present in Australia in order to file the application with the Supreme Court. However, she does not need to present in Australia for the application with the Supreme Court to be finalised.”

75. In coming to the conclusion, the learned Member also noted:

“25.   The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

•   8101 – must not work in Australia

•   8201 – must not engage in study or training in Australia for more than 3 months

•   8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

•   8531 – must not remain in Australia after end of permitted stay.

26.   The applicant is now 16 years old and attending the equivalent of year nine in high school in Thailand. The Tribunal is satisfied that she will comply with condition 8101 and will not work in Australia.

27.   The review applicant and his wife have given evidence that the visa applicant will not attend school for more than three months whilst she is in Australia. As this is what she did during her last visit to Australia, the Tribunal is satisfied that her intention is to not engage in study for a period of more than three months: 8201.

28.   The Tribunal is satisfied that the visa applicant is not entitled to a substantive visa, other than a protection visa, while remaining in Australia: 8503.

29.   The review applicant and his wife have indicated that one of the purposes of the visa applicant’s visit is so that they can formally adopt her in the Australian courts for the purpose of securing a permanent visa for her in the future. They claim that the application must be filed with the Supreme Court whilst the visa applicant is present in Australia, but she need not remain in Australia for the adoption to be finalised.”

76. By letter dated 18 January 2016, the Department of Immigration and Border Protection advised PGH that the application for the Visitor Sponsored Family visa had been granted. WS was required to arrive in Australia before 18 April 2016 and the “stay period” was 6 months from the date of arrival. The Visa conditions included “No Work”, “Maximum 3 months study”, “No further stay” and “Must leave before Visa Expiry”.

76. On 7 and 20 February 2016, counselling of CS and BS was said to have taken place in Thailand. CS and BS signed a written consent to the adoption of WS by SS and PGH on the 1 March 2016 (Ex B1).

77. CS and BS appear to have consented to the application made by SS and PGH to the Family Court and they have also consented to SS and PGH adopting WS. They state that they have “a full understanding of the meaning and implications of the adoption, which have been explained to us by an Adoption Lawyer we engaged and visited in Bangkok”.

78. On 3 March 2016, WS signed what was said to be her consent to adoption, also attesting to having undergone counselling on 7 and 20 February 2016 (Ex B1).

79. On 7 March 2016, WS returned to Australia pursuant to a temporary visa granted under the Migration Regulations 1994 (Cth). She remained living with SS and PGH until 23 July 2016. In compliance with the conditions of her visa, she then returned to Thailand.

80. As previously stated, the Plaintiffs on 7 March 2016 filed the Summons in the 2016 proceedings seeking an order for the adoption of WS on the same day as WS arrived in Australia. WS was present in Australia at the time of the commencement of the 2016 proceedings.

81. On 20 April 2016, PGH made a request to the Department of Family and Community Services to undertake a suitability assessment of him and SS, as adoptive applicants, for the purpose of the 2016 proceedings. In the submissions made, it was stated that the request was being made to assist in their Commonwealth Adoption visa application.

82. On 24 July 2016, an application was lodged on behalf of WS for a Student (Temporary) (class TU) Student (subclass 500) Visa (Ex. A). SS signed the Sponsorship for a child to migrate to Australia on 23 July 2016 (Ex. 1D5).

83. On 27 July 2016, an application dated 23 July 2016, for migration to Australia by a child, was lodged at the Australian Embassy at Bangkok, on behalf of WS, for a Child (Class AH) Adoption (subclass 102) Visa: Ex. 1D1. The sponsor for WS was SS.

84. On 26 August 2016, WS was granted the (temporary) (class TU) Student (subclass 500) Visa. The stay period will expire on 15 March 2019.

85. The Student (Temporary) (Class TU)(sub class 500) visa has the following conditions, namely, “NFS EXCEPT PTW” (which means that the visa holder cannot apply for another visa except, a further student visa with permission to work), “WORK LIMITATION” (which means that the visa holder must not engage in any work in Australia before the holder's course of study commences), “MEET COURSE REQUIREMENTS” (which means that the visa holder must remain enrolled in a registered course), “MAINTAIN HEALTH INSURANCE” (which means that the visa holder must maintain adequate arrangements for health insurance during the stay in Australia), “MAINTAIN ELIGIBILITY” (which means that the visa holder must continue to satisfy the requirements for grant of the student visa), “MAINTAIN EDUCATION FOR DEPENDENTS” (which means the visa holder must maintain adequate schooling arrangements for any school-age dependents who joined her in Australia for more than 3 months as part of your student visa application), as she is younger than 18 years she must have accommodation and support, and her general welfare must be maintained for the duration of your stay in Australia, and “INFORM PRVDR OF ADRS”, which means that the visa holder must provide certain information to the education provider.

86. On 28 August 2016, WS entered Australia pursuant to the Student (Temporary) (class TU) Student (Subclass 500) visa in the charge of SS. From that date, WS has been living in Australia (with the exception of a trip back to Thailand on 29 December 2016 and returning on 1 February 2017), with SS and PGH, pursuant to that student visa.

87. On 7 September 2016, the Acting Director, Adoption Services of the Department of Family and Community Services, determined to decline the request made by SS and PGH, as they had filed an application in the Supreme Court. They were informed that the Department does not undertake suitability assessments in intra-family adoption matters.

88. On 7 October 2016, a delegate of the Minister for Immigration and Border Protection, refused the application for a Child (Migrant) (Class AH) Adoption (subclass 102) visa upon the basis that the applicant did not meet the relevant legislative criteria for any of the three sub-classes of visa that were considered (namely, dependent child visa, adoption visa, orphan relative visa).

89. SS and PGH sought internal review of the decision, which review, on 14 October 2016, determined to affirm the previous decision. SS and PGH then sought a review of the decision in the Civil and Administrative Tribunal, which review was heard on 2 November 2016. In CSK v Secretary, Department of Family and Community Services [2016] NSWCATAD 292, for the reasons given, the application for review was dismissed.

90. On 8 November 2016, an application, on behalf of WS, for review of the decision to refuse a Child (Migrant) (Class AH) Adoption (subclass 102) visa was lodged with the Administrative Appeals Tribunal. The review, at the date of the hearing, was not yet complete.

91. On 20 December 2016, the applicants filed a Notice of Appeal from the decision of the Civil and Administrative Tribunal with the NSW Civil & Administrative Tribunal Internal Appeal Panel. The appeal, at the date of the hearing, had not been heard or determined.

92. On 29 December 2016, at, or after, 10:00 a.m., WS left Australia and returned to visit Thailand (Ex. A).

93. On 1 February 2017, WS returned to Australia pursuant to the Student Temporary Class visa that had been granted on 26 August 2016. She has remained in Australia since that time.

94. I should mention, to the extent that it is relevant, there is no dispute that:

1. The application before the Court has not been made by the Secretary of the first Defendant;

2. There has been no order for adoption by the Plaintiffs of WS granted in Thailand. Under Thai law, she has not been declared available for adoption.

3. There is no evidence that an adoption compliance certificate has been issued in Thailand.

4. There is no foreign adoption that can be recognised in New South Wales.

5. The agreement of the New South Wales Central Authority in Australia and the Central Authority in Thailand, respectively, to the adoption of WS, has not been sought, and, accordingly, has not been given.

Additional Findings of Fact

96. I am also satisfied that the following facts have been established.

97. At all relevant times, SS and PGH were spouses habitually resident in Australia.

98. On each of the occasions that WS has returned to Australia from Thailand, she has resided with SS and PGH in New South Wales.

99. On each occasion that WS has left Thailand, her entry into Australia has been lawful, by virtue of the relevant visa granted by the Australian Department of Immigration and Border Protection.

100. On each occasion that WS has left Thailand, she knew that she was going to remain, temporarily, in Australia. On the first occasion, SS, PGH, CS and BS, arranged for her to reconnoitre possible arrangements for a life in Australia as she had previously only lived in Thailand throughout her young life and had never left Thailand.

101. Prior to her visit in 2014, WS relinquished her place at the selective school she had been attending and she also terminated the lease on her residential accommodation.

102. Following her arrival in Australia in June 2014, WS studied an intensive English course for 10 weeks at TAFE. After that, she attended High School for about three weeks. WS wrote that during this three week period, she “made lots of friends who were about my age”. When she left, her friends bought her a farewell gift.

103. WS returned to Thailand in November 2014 where she remained until March 2016. Whilst there, she lived with her grandparents. She did not go back to school until about 5 months after her return, because she wished to return to Australia. WS stated, as her reason for not returning to school, “I did not want to start at a new school if I was going to leave for Australia after a few months”. But when she did not get a visa, she started attending school in her local village.

104. SS returned with WS to Thailand and remained there for 3 months, staying with WS and her grandparents, and she and WS spent much time together. It is during this time that SS and PGH applied for the Orphan visa and sponsored family visitor visa. She said that she liked seeing her friends from her village “but I did not spend much time with them after school”. During her time in Thailand, SS also made arrangements for WS to continue attending English classes.

105. WS returned to Australia on 7 March 2016 and remained in Australia until 23 July 2016. During this period, once again, she resided with SS and PG. They attempted to enrol her again in the same High School that she had attended during her stay in 2014, but as the intake of students was full, she was enrolled in another local High School. She attended that High School, on a full-time basis, throughout the time of this 4 month stay. Again, she formed friendships with other students of her age. They engaged in activities together at school and otherwise.

106. In compliance with the visa requirements, WS returned to Thailand on 23 July 2016. In her affidavit, she stated that it was her intention, at this time, to return to Australia when she was able to, and that she saw her future to be in Australia. As she put it:

“It was my plan to try and get another visa to come back to Australia while I was in Thailand, because I wanted to continue my life in Australia. I wanted to continue to go to [the local] High School and I wanted to live with my Aunty and Uncle”.

107. Upon her return to Thailand, WS lived with her grandparents. She states that whilst she did return to school, it was only for a few days per week and not full-time.

108. WS next returned to Australia, on 28 August 2016. She recommenced schooling at the same High School that she had attended during her stay earlier in the year and resumed the friendships with the same group of students. She also began working part-time on the weekend at a local Thai restaurant as a waitress. WS stated:

“I am so happy to be back in Australia. I think of Australia as my home. I feel that Australia is more like my home than Thailand….I plan to apply for another visa to allow me to stay in Australia for as long as possible.”

109. On each occasion that she has come to Australia, WS did so in the genuine belief that she would, or might, have a better life here, and with the intention that she might, in the future, be able to settle in Australia permanently.

110. On each occasion that she left Thailand, WS left her parents, her brother and her grandparents in Thailand. None of them have objected to WS leaving Thailand. To the contrary, they supported her return to Australia.

111. On each occasion that an application was lodged by SS and PGH to enable WS to come to Australia, they did so in the genuine belief that WS would, or might, have a better life here, and with the intention that she might, in the future, be able to settle in Australia permanently.

112. In March 2016, the intention of SS and PGH was to lodge the application for the adoption of WS by them when she was present in Australia.

Adoption in New South Wales

113. It is useful to note that, relevantly, in New South Wales, the routes to adoption include:

1. The adoption of a child pursuant to s 23 of the Act.

2. The adoption of a child from another country in accordance with the provisions of the Act that comply with intercountry adoptions; that is, adults resident in one country adopt a child resident in another country pursuant to Chapter 4 of the Act.

3. The adoption of a child, recognised by the law of New South Wales, and effected under the law of any other country;

4. The adoption under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption signed at the Hague on 29 May 1993 (“the Convention”) in circumstances where there is a child habitually resident in one Contracting State ("the State of origin") who has been, is being, or is to be, moved to another Contracting State (‘"the receiving State"’), either after her or his 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. The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“the Regulations”) give effect to Australia’s obligations under the Convention.

114. The matter, if the adoption is one to which the Convention applies, is complicated because, whilst generally, it will be reasonably clear where both the child and the prospective adoptive parents “habitually reside”, WS is no longer present in the State of origin, having entered Australia on a temporary visa. When she arrived here, SS and PGH, as proposed adoptive parents, applied to adopt the child in New South Wales.

115. The question whether jurisdiction falls appropriately under the Act, or under the Convention (and, therefore, the question whether the provisions of the Act that apply to intercountry adoptions are applicable), is what has occupied a number of Courts, including, albeit briefly, the Court of Appeal.

116. SS and PGH contend that the application falls to be considered as an adoption of a child habitually resident in Australia by persons habitually resident in Australia. If the Court accepts that contention then it has jurisdiction to hear and determine the Summons. In the alternative, they submit that the habitual residence of WS in Thailand was lost when she left Thailand on 6 March 2016 and when she arrived in Australia on 7 March 2016.

117. SS and PGH seek an order for the adoption of WS under s 23 of the Act absent satisfaction of the requirements in s 107 of the Act. In this way, they submit that the matter would proceed in the ordinary way as an intra-family adoption.

118. The first and second Defendants and the Intervener contend that the time for consideration of the place of habitual residence is the time WS moved from Thailand to Australia for the purpose of adoption. If the Court accepts that contention, and finds her to have been habitually resident in Thailand, it does not have jurisdiction to hear and determine the Summons, other than in accordance with the provisions that relate to intercountry adoption. They submit that because the requirements of s 107 of the Act have not been satisfied, the Court does not have jurisdiction to grant the order sought in Paragraph 1 of the Plaintiffs’ Summons.

The Law

119. It is necessary, first, to identify the sections of the Act, the Convention and Regulations to the Convention (not necessarily in that order) that apply, or that may apply, to the case being brought by the Plaintiffs. Under this heading, where appropriate, the submissions of the parties will be included to the extent that those submissions have not already been mentioned. I shall refer to the submissions, although, ultimately, for reasons to which I shall come, it is not necessary to deal with all of them.

120. Chapter 4 of the Act describes the adoption process which may lead to the making of an adoption order.

121. Section 23 of the Act provides:

“(1) Subject to this Act, the Court may make an order for the adoption of a child (an "adoption order" ) solely in favour of one person or jointly in favour of a couple.

(2) The Court must not make an adoption order unless, when the application for the order is filed:

(a) the child is present in the State, and

(b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State.

…

(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.”

122. “Child” is defined in the Dictionary of the Act, relevantly, as meaning “a person who is less than 18 years of age”.

123. An "intercountry adoption" means “the adoption by a person resident or domiciled in New South Wales of a non-citizen child from a country outside Australia”.

124. It is to be noted that s 23 does not identify the person, or persons, by whom an application for adoption may be made. The only precondition in regard to the applicants appears to be that if the application is a joint application, each of the applicants, must reside, or be domiciled, in New South Wales when the application for the order is filed.

125. Section 31 of the Act 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 Secretary or an accredited adoption service provider that may provide intercountry adoption services or the Secretary 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.”

126. A "non-citizen child" has the same meaning as in the Immigration (Guardianship of Children) Act 1946 (Cth). Section 4 of that Act defines "non-citizen" as "a person who is not an Australian citizen". The definition of “non-citizen child”, in that Act is “a person who is a non-citizen child under subsection 4AAA(1) or (4)”. Section 4AAA (1) states that a “non-citizen child” is a child who “(a) has not turned 18; and (b) enters Australia as a non-citizen; and (c) intends, or is intended, to become a permanent resident of Australia”. However, s 4AAA(1) does not apply if, relevantly, the child enters Australia for the purposes of living in Australia under the care of a relative of the child who has turned 21 or an intending adoptive parent of the child.

127. Section 4 of the Immigration (Guardianship of Children) Act also defines “intending adoptive parent”, in relation to a child, as “a person who intends to adopt the child under the laws in force in a declared state or territory, or secure the recognition of an adoption of the child by the person under the laws of a foreign country”. “Declared State or Territory” means a State or Territory in respect of which a declaration under section 4AAB is in force. If New South Wales was a declared state, then WS, having entered Australia for the purposes of living in Australia under the care of, the Plaintiffs, as intending adoptive parents, would not be a “non-citizen child”.

128. (Subsection (3) is concerned with a child in respect of whom a "prescribed adoption class visa" is in force. It is not relevant to this case.)

129. Part 2 of Chapter 5 of the Act is headed “Intercountry and Overseas Adoptions”. Section 103 (in Division 1 of Part 2) of the Act 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.”

130. Section 107 of the Act 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.”

131. The Convention is incorporated into the Act in Schedule 1 of the Act. Section 210 of the Act specifically provides “Schedule 1 has effect” with the result that the Convention had been adopted by s 210 (Re Susan [2009] NSWSC 592, per Palmer J, at [82]) and has become part of the law of New South Wales: Application of ARD and RGD; re FGG and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) [2014] NSWSC 1963, per Robb J, at [75] – [79].

132. It should be noted that s 107 applies to an application by the Director-General of the Department of Family and Community Services or the principal officer of an accredited adoption service provider that may provide intercountry adoption services.

133. The Plaintiffs submit on its proper construction, that s 107 applies only to the adoption of a "non-citizen child" and that having regard to the circumstances in which she entered Australia, WS is not caught by the definition of "non-citizen child", with the result that s 107 has not been engaged.

The Convention and Regulations

134. On 29 May 1993, during the 17th Session of the Hague Conference on Private International Law, 63 States signed the Convention. The Convention came into force on 1 May 1995. Australia ratified the Convention on 25 August 1998 and it entered into force, for Australia, on 1 December 1998.

135. As was noted by Robb J in Application of ARD and RGD; re FGG and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), at [42]:

“The mere fact that the Convention was ratified by Australia, and came into force as a treaty to which Australia became bound, did not, however, make the terms of the Convention part of the municipal law of Australia: Minister for Foreign Affairs and Trade v Mango [1992] FCA 566; (1992) 37 FCR 298 at 303 per Gummow J; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1998) 183 CLR 273 at 286-7 per Mason CJ and Deane J.

Section 111C(1) of the Family Law Act 1975 (Cth), which was included in the Family Law Act in 1995, authorised the making of regulations by the Australian Government to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention. The Regulations were promulgated in 1998 for that purpose.”

136. The Commonwealth Government implemented the Convention via the Regulations which were gazetted on 6 August 1998 and the Commonwealth-State agreement for the implementation of the Convention, which commenced operation on 9 April 1998.

137. The purpose of the Regulations is to give effect to the Convention by making provision for the appointment of Central Authorities to carry out Australia’s obligations under the Convention, to provide for recognition in Australian law of adoption orders made in other Convention countries and to confer jurisdiction on courts to make adoption orders under the Convention. In Australia, each state and territory has established a Central Authority and the Commonwealth Attorney General’s Department has established a principal Central Authority.

138. The Convention applies between those countries that have ratified it and countries that have acceded to it and whose accession has been accepted by other ratifying, or acceding, countries. There is no dispute that Australia and Thailand is each a signatory to the Convention.

139. Article 1 of the Convention provides:

“The objects of the present Convention are-

a. 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,

b. to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children,

c. to secure the recognition in Contracting States of adoptions made in accordance with the Convention.”

140. Article 2 of the Convention provides:

“1 The Convention shall apply where a child 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.

2 The Convention covers only adoptions which create a permanent parent-child relationship.”

141. (It is Article 2 that provided the central plank of the Defendants’, and the Intervener’s, case. Relevantly, the Article was read by those parties in this way:

“The Convention shall apply where a child (WS), habitually resident in the State of origin ("Thailand"), has been, is being, or is to be, moved, to the receiving State ("Australia"), by spouses … habitually resident in Australia (SS and PGH), for the purposes of an adoption in Australia.”)

142. Article 4 of the Convention provides:

“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.”

143. Article 5 of the Convention provides:

“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.”

144. Chapter III of the Convention 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 Regulations provide for the establishment of a Commonwealth Central Authority (Regulations 5 and 6), and State Central Authorities (Regulations 8 - 11). The Department of Family and Community Services is the relevant State Central Authority.

145. 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.”

146. There is no suggestion that either Chapters III or IV applies apply to the facts of this case. It follows that it is unnecessary to refer to Articles 15 to 21 of the Convention.

147. Regulation 25 of the Regulations invests the Supreme Court with federal jurisdiction in matters arising in New South Wales to which a provision of Part 4 of the Regulation applies.

148. Regulation 15, which is included in Part 4, relevantly, provides:

“(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.”

149. It should be noted that Regulation 15 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, and that it is the person, or persons, proposing to adopt the child who must apply to a court for an order that the child be adopted by the person or persons (emphasis added).

150. In this case, the reason for referring to Regulation 15 is because if the Court has jurisdiction to determine the Plaintiffs' application under s 23 of the Act, it may be necessary to consider whether the Act, in its application to the proposed adoption of WS, is inconsistent with Regulation 15. As will be read, for reasons set out hereunder, it is unnecessary to further consider this question.

151. The Plaintiffs submit that on the facts as agreed between the parties, WS is habitually resident in Australia, such that Regulation 15 does not apply to this case. They submit also that the Convention would only apply where a child habitually resident in a Convention country has been, is being, or is to be moved to Australia either after his, or her, adoption in the Convention country by spouses or a person habitually resident in Australia, or for the purposes of such an adoption in Australia or in the Convention country. They submit that given WS has entered Australia, not for the purpose of being adopted, but in order to continue her education, the plaintiffs' application does not engage the Convention and should simply proceed under s 23 of the Act.

152. I have some doubt about the correctness of the submission by the Plaintiffs that WS was not moved to Australia for the purposes of adoption, considering, amongst other things, that in their application for a Visitor Short Stay Visa (subclass 600) lodged on the 27 May 2015 (pursuant to which WS entered Australia on 7 March 2017), the purpose of stay is described as including “Parties will be applying to adopt the child following which an adoption visa application will be made” (Ex B1/153) and PGH’s references, during the hearing, to this being at least one of the purposes for which WS sought to come to Australia.

153. They also submitted that that Regulation 15 does not cover the field and that contrary to Re S and the Adoption Act 2000 (NSW) (No 2), there is no inconsistency between the Regulations and the Act because the provisions of the Act make comparable provision to the Regulations or because Regulation 34(2) applies in any event. They also submitted that s 107 of the Act is facilitative and not exhaustive. Furthermore, they argue that Re S and the Adoption Act 2000 (NSW) (No 2) was wrongly decided.

154. Regulation 34 of the Regulations makes provision for the relationship between the Regulations and State law. 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.”

155. The reason for mentioning Regulation 34 is that the Plaintiffs’ argue that the effect of Regulation 34(1) is that Regulation 15 would not apply to New South Wales if there was in force in New South Wales a law “having the same effect as, or comparable effect to” Regulation 15.

156. As was noted, very recently, by Brereton J in Adoption of BW [2017] NSWSC 174, White J had considered Regulation 34 in Re S and the Adoption Act 2000 (NSW) (No 2), and had observed, at [58], that the expression “comparable effect” was used in the sense of “similar effect”. Brereton J, also noted, at [17], that White J had observed that:

“(1) if Adoption Act s 107 were a “stand-alone” avenue for the making of an adoption order, it did not contain the substantive requirements of Regulation 15(1) – that is, that arrangements for the adoption were made in accordance with the Convention, the laws of the Commonwealth and the relevant State, and the laws of the Convention country; and

(2) if (as his Honour thought) it were not a stand-alone provision, then it picked up the requirements of Chapter 4 of the Act, the effect of which was substantially different from the effect of the Regulations, under which the Court’s function was only to determine whether the requirements of the Convention had been complied with (and not to make its own judgment as to the best interests of the child).

(3) His Honour concluded that s 107 did not have the same or comparable effect as Regulation 15.”

157. White J also concluded that the appropriate course was for the Court to assess the adoption application under Regulation 15, rather than under the Act, essentially on the ground that where the adoption is governed by the Convention, and the applicants for the adoption order are in New South Wales, the Commonwealth legislation covers the field and prevails over relevant provisions of the Act because of s 109 of the Constitution. His Honour, at [53], accepted that the Parliament of New South Wales had intended that the provisions of the Act should have the same effect as, or comparable effect to, Regulation 15, with the result that, under the Regulations, the Act would apply. His Honour held, at [55], however, that this objective had not been achieved by the drafting of the New South Wales legislation, particularly s 107.

158. Assuming Re S and the Adoption Act 2000 (NSW) (No 2) has not been wrongly decided, it would be necessary for the Court to be satisfied that the arrangements for the adoption of the child have been made in accordance with (a) the Convention; (b) the laws of the Commonwealth and New South Wales; and (c) the laws of Thailand. (As to the matters to be established, see Application of MGO and AAO; re LDC [2011] NSWSC 951.)

159. The Plaintiffs did not attempt to establish the matters identified by White J in Re S and the Adoption Act 2000 (NSW) (No 2). They conceded that they have not attempted to make arrangements in accordance with the Convention for the purpose of adopting WS.

160. In SFH and MEM [2008] NZFC 170, the Family Court of New Zealand considered the application to adopt a Thai/Cambodian child, where the adoption had been approved by both the Thai and New Zealand authorities. However, the application was brought under the domestic adoption legislation, rather than under the Adoption (Intercountry) Act 1997 which incorporates the provisions of the Convention. The Court decided that the adoption should not be allowed to proceed under the domestic adoption legislation and refused to make the order.

161. Brown J noted at [37] – [38] that:

“It would not just be an impoliteness but a breach of the Convention’s carefully configured process of inter-country adoption for this Court to now cut across it and make a domestic order. It is a duty of a Court to support treaty obligations…in my view there are compelling reasons for the Court not to passively now allow intercountry adoption to take place by domestic Order under the Adoption Act unless in the individual case such is the only option.”

162. Because of the Court’s conclusion regarding the habitual residence of WS, it is unnecessary to delve into the complex questions raised.

Habitual Residence

163. To come within the scope of the Convention, a child must be habitually resident in a Contracting State. Given that central importance, it might be thought surprising that the term “habitual residence” is undefined in the Convention. Ideally, it ought to be an easy concept. Proving the gaining, or the loss, of habitual residence, may be harder.

164. Whilst accepting the limitations of dictionary definitions, they may be helpful in indicating the range of possible meanings that a phrase conveys. The Oxford English Dictionary relevantly defines "habitual" as

203. There is force in the submissions made on behalf of the Defendants and the Intervener, and I respectfully agree, that making a date other than the date of the move, for example, the date of the filing of the amended Summons, the date of the hearing of the proceedings, or the date of the making of any order for adoption, the date at which the habitual residence of the child is to be determined, would permit the vagaries of when the Summons was filed, or when the hearing of the application was to take place, to affect the decision. By any of those dates, which may be days, weeks, or months, after the application for adoption was lodged, the habitual residence of the child may have changed (as is asserted by the Plaintiffs and by WS regarding the events that have occurred after 7 March 2016).

204. In support of this conclusion, I refer to Re Adoption Application by KGC and TGC [2007] NZFLR 851, in which a maternal aunt had brought children from the Philippines on a visitor’s permit to New Zealand. It was found the applicants’ purpose in bringing them to New Zealand was for adoption. At [69] of the reasons for judgment, the trial Judge wrote:

“Those who legitimately remove children from their state of origin to spend time in another country, and have that time extended either by the receiving State exercising a special indulgence or without the receiving State's knowledge, then later seek to rely on the length of time they have managed to remain in the receiving State under special conditions or undetected, in my view would acting inconsistently with and in breach of the objects of the Convention.”

217. Despite the time spent in argument, in regard to the question, I am well satisfied, in relation to s 107 and Regulation 15, that the time at which the habitual residence of WS is to be considered is when the court is first seised with the application and the movement of the child is able to be established.

218. The focus of the application of the Convention, and the emphasis in the Convention, is on the movement of a child habitually resident in the State of origin to the receiving State where the proposed adoptive parents are habitually resident.

219. At the date of movement, it should be clear, whether or not the Court has jurisdiction, and if it does, upon what basis the jurisdiction is to be exercised. In my view, the time of the child’s movement is not a continuing state of affairs, but rather an event occurring on a specific occasion. At the time identified, the only possibilities are that the child was habitually resident (i) in the State of origin; or (ii) in the receiving State; or (iii) in neither, she, or he, at that time, having no habitual residence. Obviously, if either (ii) or (iii) is established, the Convention does not apply.

220. At that time, the Court must consider whether the child “has been, is being, or is to be, moved …for the purposes of … adoption”, and, at whichever one of those times applies, whether she, or he, had, or has, habitual residence in the State of origin. If the child has been moved, then the date of the child’s move is the relevant date for determining whether or not she is habitually resident there.

221. Thus, in the circumstances of this case, the relevant date for determining the question of habitual residence is when WS “has been … moved …for the purposes of … adoption”, from Thailand to Australia, being 6 March 2016, the day before the date of the application for the order for adoption had been filed.

Was WS habitually resident in Thailand at that time?

222. As I have earlier stated, there is a distinction between losing habitual residence in the State of origin and acquiring habitual residence in the receiving State. All that the Plaintiffs have to establish is that when WS moved, her habitual residence was not Thailand. They do not have to establish that, at that date, WS had acquired habitual residence in Australia. Based upon High Court authority earlier mentioned, a child may leave behind a place of habitual residence without acquiring another one.

223. Therefore, I now turn to the question whether WS was habitually resident in Thailand or whether she lost her habitual residence when she left Thailand on 6 March 2016. If WS’s habitual residence was lost upon leaving Thailand, then, she could no longer be regarded as being habitually resident in Thailand, with the result that the Convention would immediately cease to apply since she would not be a child habitually resident in the State of origin.

224. There are, or may be, a number of possible reasons for the presence of a child in a country that is not her, or his, country of habitual residence: a holiday, a reconnaissance visit, a trial visit for the purpose of determining whether to stay, a move for a definite, or even an indefinite, period, or a permanent move. It is even possible that the move of the child is conditional on other events, over which events the child may not have any control, such as being granted a visa that permits a stay for a greater length of time.

225. The following facts support the contention that on the date of WS’s move to Australia, being 6 March 2016, WS had not lost habitual residence in Thailand, or that she had not gained habitual residence in Australia:

1. WS was born in Thailand and remained a Thai national. She had a lifelong national, and cultural, connection with that country.

2. Members of WS’s immediate family, namely her parents, her brother, and her grandparents, remained living in Thailand. Those family members continue to live in Thailand.

3. WS acknowledged the closeness of her relationship, particularly with her grandparents.

4. Prior to leaving Thailand on 6 March 2016, WS had been living in Thailand for almost the whole of her life, apart from a few weeks, in 2014, when she had visited Australia for a temporary and limited purpose. There was no degree of regularity to her presence in Australia as at 6 March 2016.

5. WS had received some years of education in Thailand. Even when she went back in 2014, she attended school, albeit recommencing her attendance at school some months after her return. As at 6 March 2016, she had received only about 10 weeks of Accelerated English Classes and 3 weeks attending High School, in Australia. There is no evidence that she maintained any continuing Australian curriculum studies when she had returned to Thailand in November 2014, although she did continue to study English.

6. The period of time that WS had spent in Australia in 2014 did not amount to, and could not provide, a genuine integration with any sufficient degree of stability to satisfy the requirements of habitual residence. At that time, her stay in Australia was temporary and, at that time, could only be temporary.

7. On each of the occasions she came to Australia, in 2014, and then, in March 2016, WS had a return air-ticket. There were specific restrictions on her right to remain in Australia on each occasion. When she left in 2014, any assimilation into Australia was halted. Thereafter, it was not possible for WS to acquire residence, let alone habitual residence, in Australia, whilst remaining physically present in Thailand.

8. Whilst residence does not have to be permanent, it is clear that each visa granted to her and pursuant to which she came to Australia, was a temporary one, granted under the Migration Regulations, with specific restrictions on her ability to fully integrate into Australian life. Whilst on each occasion WS came to Australia, she did so lawfully, pursuant to a valid visa, the very fact of the visa being a temporary one, and one that imposed restrictions, including the purposes for, and the length of, the permitted stay, the terms of the visa interfered with WS’s integration in Australia.

9. There had been a disruption to any routine, or stability, that WS had acquired on her visit to Australia in 2014. Whilst she was going back to the home of SS and PGH, she was going to attend a new school, for a specific period of time, where she would have to develop new friendships and interests. Once again, her period of stay in Australia was to be a relatively short one. There is a difference between habitual residence and the occasional, or casual, presence, by virtue of “visiting”. Her mere presence did not establish habitual residence in Australia or the loss of habitual residence in Thailand.

10. Even if WS, SS and PGH had planted the roots to establish the requisite degree of integration into a social and family environment in Australia, on WS’s first visit to Australia, what had been done was insufficient to disengage her roots in Thailand to the point at which she achieved the requisite degree of de-integration from Thailand.

11. Whilst WS hoped to come back to Australia, upon her return to Thailand, she re-integrated into her social and family environment in Thailand.

12. When she moved on 6 March 2016, her stay in Australia, again, could only have been temporary. Accordingly, WS did not have either the necessary degree of stability, or permanence, in Australia, in March 2016, since she knew that she must return to Thailand at the expiration of her visa and that she could only return if she was granted another visa.

13. On arrival into Australia on 7 March 2016, WS was not actually resident, at all, or certainly not for any “appreciable period” in Australia. She returned to Australia after a period of about 16 months in Thailand. At best, she might have been in Australia for a few hours before the Summons for adoption in the 2016 proceedings was filed. She could not be regarded as having, in that short period, settled into the environment to which she was returning.

14. Her principal reason for coming to Australia, on each occasion, was to gain access to services and resources unavailable to her in Thailand.

226. The following facts support the contention that WS, at the date of the move from Thailand to Australia, on 6 March 2016, had lost her habitual residence in Thailand:

1. At the time of her arrival in Australia, WS was over 16 years of age, with the result that her silhouette had become increasingly distinct and distant, from CS and BS, her parents. For a number of years previously, she had exhibited a degree of independence from them, even though, at times, she was dependent upon other adults, including her grandparents and SS.

2. The role of CS and BS in the life of WS, for some time, had been limited, and in terms of her day to day life and relationships, very much secondary to that of her grandparents and the Plaintiffs. The role of SS and PGH seems to have increased after November 2014.

3. Whilst the orders made by Benjamin J could not confer habitual residence upon WS, and did not determine her place of habitual residence at some later point in time, in circumstances where she returned to Thailand a matter of a few weeks after the orders were made, and when she did not return until 7 March 2016, there were orders in operation granting SS and PGH parental responsibility for WS at the time of her move from Thailand in March 2016. The orders made by Benjamin J included that CS and BS, her parents “shall communicate with the child as agreed between the child and the parents, which communication shall comprise of weekly telephone/Skype calls” and that she was “required to spend time with her parents at least one month per year in either Australia or Thailand”.

(I should state that I reject the Plaintiffs’ contention that s 111CS(2) of the Family Law Act required Benjamin J to find that all matters pertaining to the parenting of WS were to be determined according to her country of habitual residence and since he found jurisdiction, he was satisfied that Australia was her country of habitual residence in October 2014. There is nothing in the judgment to suggest that Benjamin J considered the question of WS’s country of habitual residence.)

4. WS, SS and PGH, following the earlier visit to Australia, each held the belief that WS, if permitted to return and remain, would have a better life, in Australia. Even her own parents accepted, in their affidavit made on 6 January 2017, that they “…therefore had from the outset held the view that [WS] should go and live permanently in Australia”.

5. All of the events that occurred between November 2014 and March 2016 occurred as a result of the strong desire by WS, SS, PGH, CS and BS to create a real and active connection with Australia and to lessen the real and active connection with Thailand. Thus, there was agreement, acquiescence, and a court order, that WS would live with SS and PGH in Australia. Every effort was being made by SS and PGH to ensure that she obtained a visa to enable her to do so permanently, or at least for an appreciable period of time.

6. From her earlier visit to Australia, WS, SS and PGH, all had been planning the move back to Australia. There was a unanimous joint intention for WS to return to Australia, to make her life in this country. There was a sufficient degree of continuity about those intentions to be properly described as “settled”, even though it was conditional upon future events. In this regard, there was no lack of clarity in what was hoped to be achieved.

7. In the course of the brief period of time that she had visited Australia in 2014, and the date of her return to Australia in March 2016, WS, SS and PGH had planted the roots which would represent a requisite degree of integration into a social and family environment in Australia, such as providing stable accommodation for her and organising her to attend school. Those first roots would enable WS to establish the requisite degree of integration quite quickly following her arrival in Australia.

8. Even after WS returned to Thailand in November 2014, SS and PGH continued to seek to fulfil the parental responsibilities that were conferred upon them by the Family Court. The efforts by them, following the visit to Australia in March 2014, seeking one, or other visa, were made with the intention that WS permanently return to Australia. Indeed, evidence given to the Administrative Appeals Tribunal, on 13 October 2015, included an acknowledgement by PGH “that it was his intention in the long term to have the visa applicant remain in Australia permanently, but that they had no intention that she would breach her visa conditions on her visitor’s visa as they do not wish to jeopardise either her permanent application in the future…” and that “as part of [his] and his wife’s plans to have their niece reside permanently in Australia they intend to file an application with the Supreme Court for her adoption as soon as the visa applicant arrives in Australia…”.

9. It was not until 5 months after her return to Thailand, that SS made arrangements for WS to undertake additional English classes, and other schooling in the nearest school, being in Nong Kung Sri, in Thailand. The delay in re-enrolling in a school was because WS was hoping to return to Australia.

10. The reason for such a long delay between the two moves had to do with the length of time it had taken to obtain a visa, rather than any desire on the part of any of the persons referred to, that WS would return, permanently, to her life in Thailand.

11. In the lead up to her move on 6 March 2016, WS knew that she had a visa to remain in Australia for only a limited period of time, but she maintained the sincere hope that her future was to be in Australia. She described it as being less lonely than living in Thailand and she loved living with SS. She also maintained her desire to stay in Australia (subject to visa requirements), and her understanding that she would resume the habits of day to day life previously established during the 5 month stay in 2014 continued. This desire demonstrated that upon the move from Thailand, the centre of her personal and family life again settled around her relationship with the Plaintiffs, and with SS in particular.

(The submission made on behalf of WS regarding her being “a mature and intelligent 17 year old, who participates in important decision making about her life, in consultation with the plaintiffs” is helpful as it goes to the weight to be given to her evidence of her hope, her desire, and her intention, concerning living permanently in Australia.)

12. At the time of her move to Australia in March 2016, WS was to remain in Australia as long as she was permitted to do so. At that time, it was only a temporary period of 5 months, but clearly an application for a visa, which permitted a longer stay in Australia, was going to be, and was, subsequently, made.

13. For a lengthy period of time prior to the move from Thailand, WS had continuously expressed a strongly held wish to return and to live in Australia. She had made some advances in relation to her command of the English language because of her studies.

14. The move of WS from Thailand to Australia in March 2016 was a lawful move. She had a visa permitting her to enter, and stay in, Australia, albeit temporarily. The efforts being made to obtain a visa enabling her to stay in Australia permanently had not waned, and did not, thereafter, wane.

15. This is not a case of any wrongful removal of a child from Thailand. WS voluntarily, indeed, happily, chose to move to Australia in March 2016.

16. Following the grant of the visa which enabled WS to move to Australia in March 2016, SS and PGH continued with their efforts to ensure that WS would have a settled life in Australia, even though the visa only permitted her to remain for a short time. At the time of her move, in March 2016, Australia was to be the most significant part of the regular order of her life for the time being, albeit, then, for a short duration, but with the desire that she would be permitted to make it of longer, and if possible, of permanent, duration.

227. By the time that WS moved from Thailand on 6 March 2016 and arrived in Australia on 7 March 2016, she, her parents and the Plaintiffs, all considered that her long term future was to live in Australia. Even though her visit commencing on 7 March 2016 was temporary, since the visa made it such, the intention of each of the relevant persons was to take such steps, as were possible, to ensure that she could reside in Australia permanently. For a lengthy period of time, commencing from the first visit in 2014, all had set upon a course from which each did not thereafter deviate: to have WS live permanently, or at least for an appreciable period of time, in Australia. Each did not seem to contemplate WS returning to live, or living, permanently, in Thailand.

228. Between November 2014 and March 2016, there had been a gradual, yet continuous, weakening of her connections with Thailand (even though she remained there) through a process of developing her orientation in Australia.

229. On 6 March 2016, when WS moved, it was with a settled purpose to leave the place of her habitual residence. She did so in accordance with that purpose, with the consequence that her former habitual residence was lost immediately.

230. Of course, at the time of the move in March 2016, WS, her parents and the Plaintiffs, all knew that she must return to Thailand to continue to make an application for another visa, which, if granted, would enable her to return for a longer, and more permanent, period. And that is what she did, successfully.

231. In view of my conclusion concerning the date of the determination of the habitual residence of WS, the Plaintiffs reliance upon, first, the fact that WS was granted a student visa on 26 August 2016 and, thereafter, entered Australia on 28 August 2016, is not particularly relevant to whether WS had lost her habitual residence in Thailand in March 2016. However, what happened subsequently may, and in this case, does, depict, whether the steps taken previously, before the move to Australia, were genuine, and whether they demonstrated the settled purpose to which reference has been made. The subsequent conduct may also demonstrate whether an intention to adopt an habitual residence different from the State of origin has been reached, and acted upon in a decisive way, so as to provide a degree of certainty and continuity. Then, it may be open to the Court to find that habitual residence has been changed from the State of origin.

227. Following her move to Australia, in March 2016, WS returned to school, albeit not the school at which she had previously attended. She was, then, able to be integrated into Australian life, by, for example, resurrecting the friendships earlier forged, as well as recommencing her social life, even though she was required to attend a different school. She was also re-integrated into the family life of SS and PGH. This confirmed the plan continuously held after November 2014 to shift her centre of gravity to Australia.

228. Even if it is accepted that it is “not in the interests of a child routinely to be left without a habitual residence”: In Re B, at [30], the High Court of Australia has noted it is possible for that to occur. Habitual residence can be lost in a single day, upon departure from the State of origin. In such a case, one would expect that the child would have to depart the State of origin with a reasonably clear intention of not returning there for an appreciable period, and also with an intention that she would take up residence elsewhere (in the receiving State), for an appreciable period, and with a settled purpose in mind.

229. Taking into account all of the facts, and reminding myself that for someone to abandon, or lose, habitual residence the facts should be clearly demonstrated, and that there has to be a settled intention to not return to the State of origin, as well as a settled intention to take up residence, even for a limited period, in the receiving State instead, I am satisfied that, as at the date of the move from Thailand, being 6 March 2016, WS abandoned, and lost, her habitual residence in Thailand.

230. Accordingly, the Plaintiffs have satisfied me that the Convention does not apply because WS was not a child habitually resident in one Contracting State ("Thailand, the State of origin") who has been moved to another Contracting State (Australia, "the receiving State").

231. It follows that the answer to the second question is no.

232. Since the parties agreed that if the answer to the last question is no, then no further questions need to be answered, the Court has jurisdiction to entertain the Plaintiffs’ Summons under s 23 of the Adoption Act.

233. For completeness, I should repeat that, at the hearing, counsel for WS submitted that the reference within Article 2 of the Convention, to a child being moved “for the purposes of such an adoption”, should be construed as not requiring that such an adoption be the sole purpose of the child's move (T85.50 – T86.2). Therefore, although the Plaintiff’s contend that one of the purposes of the movement of WS on the 6 March 2016 was for educational purposes, as her movement to Australia concluded on the 7 March 2016 (given the travel time), and as this is the date upon which the adoption Summons was filed, a further purpose for WS’s movement was for the purpose of adoption (T86.6 – T86.15).

234. Counsel for the first and second Defendants and the Intervener concurred with this construction, that although WS may have been moved for a variety of reasons, such as study and seeing family, it was clear that WS was also moved for the purpose of an adoption Summons being filed (T95.46 – T95.49, T110.20 – T110.32, T123.15 – T123.21), and that therefore the time for the determination of habitual residence fell on that date.

235. As stated, the Plaintiffs dissented from that view, arguing that because there were several purposes for WS’ move, one of which was the purpose of adoption, the Convention, therefore, does not apply (T153.19 – T154.11).

236. Even though it is unnecessary to reach a concluded view about this issue, in view of the conclusion to which the Court has come regarding the loss of habitual residence in Thailand, by WS, I do not accept the Plaintiffs’ submissions. The submissions of the Defendants, the Intervener and WS are much more persuasive.

237. I make clear that the decision made relates simply to the separate question posed by White J, and does not go to whether the Plaintiffs are entitled to the relief sought in the Summons. That will involve the determination of very different questions and other facts.

238. Nor have I been asked to deal with the question of costs of the determination of the separate question. I shall reserve the question of the costs for further argument if necessary.

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Decision last updated: 27 April 2017