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Re WS (No 2)

Re WS (No 2)

Case [2017] NSWSC 475 27 April 2017

Adoption

Jurisdiction

Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption

Family Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re WS (No 2)

Details

AGLC: Re WS (No 2) [2017] NSWSC 475
Case: [2017] NSWSC 475
Decision Date: 27 April 2017

CaseChat Overview and Summary

In the matter of Re WS (No 2), the Family Court was asked to determine whether it had jurisdiction to make an order for the adoption of a child from Thailand by prospective adoptive parents. The dispute centred on the applicability of the Adoption Act 2000 (NSW) and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) to the adoption process, and whether the court could make an adoption order without the prospective adoptive parents complying with the Commonwealth Regulations.

The key legal issues before the court were whether the Adoption Act provided a regime for intercountry adoptions that was comparable to the Commonwealth Regulations, and whether the Commonwealth Regulations were inapplicable where the Adoption Act had the same or comparable effect. Additionally, the court considered whether it was necessary to determine if the child was a non-citizen child, as defined in the Commonwealth Regulations.

The court found that it was unnecessary to decide whether the Adoption Act had the same or comparable effect to the Commonwealth Regulations, as the prospective adoptive parents had not made an application under the Commonwealth Regulations. Consequently, the court determined that it had jurisdiction to make the adoption order under the Adoption Act. Furthermore, the court held that it was also unnecessary to decide whether the child was a non-citizen child, as the outcome of the case did not depend on this determination.

The court's final orders were that it had jurisdiction to make an adoption order under the Adoption Act 2000 (NSW), and that the prospective adoptive parents could proceed with their application for the adoption of the child from Thailand.

Orders