re Y

[2014] NSWSC 634

Supreme Court

New South Wales

Medium Neutral Citation:	Application C and C; re Y [2014] NSWSC 634
Hearing dates:	In Chambers
Decision date:	23 May 2014
Jurisdiction:	Equity Division - Adoption List
Before:	Pembroke J
Decision:	See paragraph [11]
Catchwords:	STATUTORY CONSTRUCTION - Adoption Act - Section 67(1)(a) - whether parent 'cannot, after reasonable enquiry, be found'
Legislation Cited:	Adoption Act 2000
Cases Cited:	Adoption of GWL [2013] NSWSC 1527 Application D & D; re Y [2013] NSWSC 1477 Application of MSC & CJC; re HES [2011] NSWSC 950 In the matter of N and the Adoptions Act 2000 [2012] NSWSC 1263
Category:	Principal judgment
Parties:	Mr and Mrs C (Applicants) Y (Child)
File Number(s):	A196/2013

Judgment

Introduction

1. This is another case that raises for consideration the scope and effect of the requirement of Section 67(1)(a) of the Adoption Act 2000 (the Act) that the consent of a birth parent may be dispensed with if the person 'cannot, after reasonable enquiry, be found or identified'.

1. The question arises in this case because the plaintiffs seek an order under New South Wales law for the adoption of a child born in Taiwan. On 19 March 2012, the Taipei District Court in Taiwan issued a ruling approving the adoption in favour of the plaintiffs, to which the birth mother consented. However, because Taiwan is not a party to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, the adoption order of the Taipei Court is unable to be recognised in New South Wales in accordance with Section 108 of the Act: Application of MSC & CJC; Re HES [2011] NSWSC 950 at [4].

Consent

1. It is therefore necessary for the plaintiffs to make a fresh application for adoption in accordance with, and pursuant to, the requirements of New South Wales law. Unless a pragmatic and purposive approach is taken, those requirements may sometimes present a difficulty, at least a literal and apparent difficulty. That is because the effect of Sections 52, 54 and 67 of the Act is that this court must not make an adoption order in relation to a child who is less than 18 years of age, unless the consent of each parent of the child has been given, or the court has ordered that the requirement of consent be dispensed with.

1. Significantly, the consent of each parent is only effective if it is 'given in accordance with' the Act: Section 58(1)(b). That means that it must comply with the requirements as to form stipulated in Sections 59, 60, 61, 62 and 63 of the Act. In this case, although the birth mother consented to the adoption in the Taipei District Court, her consent was not 'in accordance with' the [New South Wales] Act and did not comply with its formal requirements. For the reasons that I explain below, it is not practicable to attempt to obtain a further consent from her.

Dispensing with Consent

1. The requirement for parent's consent may be dispensed with, but there are limited grounds on which the court may exercise its power to do so. The only relevant ground on the facts of this case is that each parent 'cannot, after reasonable enquiry, be found or identified'. The father's position is clear. He cannot be found or identified. But the position of the mother is more problematic. Her identity is obviously known and her last known address is probably available. Indeed, her consent was verified by the District Court of Taipei both in writing and by her personal appearance before the court. The question is whether, in order to justify dispensation from the requirement for her consent under the Act, it can be said fairly that the mother 'cannot, after reasonable enquiry, be found or identified'.

1. An important feature of this case is that the adoption of the child in Taiwan was facilitated by an organisation known as the Christian Salvation Service (CSS). It fulfils an important social function in Taiwan. And the New South Wales Department of Family & Community Services maintains a good working relationship with CSS. I accept that it is important that the Department continue to do so. The maintenance of that ongoing relationship involves, among other things, the need to respect the protocols of CSS that apply in relation to dealings with the birth parents of an adopted child.

1. CSS has informed the Department of Family & Community Services on a number of occasions that it:

is not in a position to contact a former legal guardian of a child regarding new or additional consent as under Taiwan law they have no legal authority regarding the child from the date of the Taiwan adoption.

(emphasis added)

1. This is an understandable and reasonable position. In such a case, the birth mother will have entirely relinquished her practical and legal authority over the child; formally severed her maternal ties with the child; and consented to the child being adopted by persons whose suitability as adoptive parents has been assessed and approved under Taiwanese law. She cannot actually be compelled to provide another form of consent to satisfy the demands of New South Wales law; and she ought not be requested to do so. CSS should not, and cannot, be compelled to seek to obtain such consent from her. Perhaps more significantly, persons in the position of the plaintiffs cannot reasonably be expected by themselves to search for and locate the birth mother and attempt to obtain another form of consent from her.

1. I gratefully adopt the opinions expressed by other judges of this court in cases involving similar facts:

In my view in the circumstances it would not be reasonable for the court to expect parties in the position of the present applicants to attempt to find the birth mother by their own efforts, unaided by the assistance of an agency such as CSS.

Robb J, Application D & D; re Y [2013] NSWSC 1477 at [37]

In this case, it is theoretically possible that the adopting parents could, by making further private inquiries, locate the birth mother. I do not think that it is reasonable that they be required to do so in circumstances that the Department does not consider it appropriate for it to take steps to do so, given the concerns that it has identified as to potential prejudice to its continuing relationship with the Agency.

Black J, The matter of N and the Adoption Act 2000 [2012] NSWSC 1263 at [8]

The only realistic method by which the applicants could contact SCL is through CSS, and it has shown that it would not be willing to assist. I do not think that it would be reasonable to require the applicants to make such an inquiry, or to attempt any other inquiries of their own.

Darke J, Adoption of GWL [2013] NSWSC 1527 at [28]

Conclusion & Orders

1. I am therefore satisfied that, within the meaning of the Act, the birth mother cannot, after reasonable enquiry, be found. The object and purpose of Section 67(1)(a) is to enable consent to be dispensed with in circumstances where the parent cannot be found, and also where it is not reasonably practicable to expect that the parent can, or will be, found. The phrase 'after reasonable enquiry' imposes an important qualification on the statutory requirement. It follows in my view that, on the facts of this case, the test imposed by Section 67(1)(a) of the Act has been met.

1. For those reasons, I make the following orders:

(1)   Order that the requirement of the consent of the child's birth mother to the adoption of Y by Mr and Mrs C be dispensed with.

(2)   Order that the requirement of the consent of the child's birth father to the adoption of Y by Mr and Mrs C be dispensed with.

(3)   Order that the requirement of notice of the application for an adoption order to the child's birth mother and birth father be dispensed with.

(4)   Order for the adoption of Y in favour of Mr and Mrs C and approval of the name 'C' as the surname of the child.

(5)   That two certified copies of the orders (together with these reasons) be released to the Department of Family & Community Services for transmission to the organisation known as 'Christian Salvation Services'.

Decision last updated: 23 May 2014