re YSL - [2013] NSWSC 564

Supreme Court

New South Wales

Medium Neutral Citation: Application MKL & MJL; re YSL [2013] NSWSC 564
Hearing dates: In Chambers
Decision date: 14 May 2013
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Application for consent dispense order declined. Adoption application adjourned.

Catchwords: FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Taiwan - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Taiwan - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Taiwanese court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - birth mother not shown to be unable to be identified or found - no grounds apparent to dispense with consent - held: application for consent dispense order declined.
Legislation Cited: (CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998
(CTH) Family Law Act 1975
(CTH) Immigration (Guardianship of Children) Act 1946,s 4AAA, s 11
(NSW) Adoption Act 2000, Pt 5, s 52, s 54, s 58, s 59, s 60, s 61, s 62, s 63, s 67, s 72, s 87(2)(b), s 90, s 108, s 113, s 116, s 117
(NSW) Children and Young Persons (Care and Protection) Act 1998
Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption
Category: Principal judgment
Parties: MKL and MJL (applicants)
YSL (child)
File Number(s): A22/2013

Judgment

HIS HONOUR: This adoption application is made by MKL and his wife MJL in respect of a child YSL, who was born in Taiwan on 21 June 2011.

The child was born to MYL whose name, ID number, address and telephone numbers appear on the child's birth certificate, and on the Taipei District Court order. There are no details of the birth father.

On 5 September 2011, the Taipei District Court approved the adoption of the child by the applicants. The judgment of the court records that MYL appeared at court in connection with the application to explain her reasons for relinquishing the child.

The applicants travelled to Taiwan, where they arrived on 8 February 2012. On 9 February 2012, the child was placed in their care. On 16 February 2012 they left Taiwan, returning to Australia with the child on 17 February 2012.

By their summons, the applicants seek an adoption order, a consent dispense order in respect of the child's natural father and mother, and an order dispensing with notice to the natural father and mother.

Taiwan is not a party to the Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption. Accordingly, it is not open to proceed by way of recognising the Taiwanese adoption under (NSW) Adoption Act 2000, s 108. Nor is Taiwan a prescribed overseas jurisdiction under the (CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998, so it is not open to recognise the…

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 YSL

Details

AGLC: re YSL [2013] NSWSC 564
Case: [2013] NSWSC 564
Decision Date: 14 May 2013

CaseChat Overview and Summary

In the matter of YSL, the court was presented with an adoption application concerning a child born in Taiwan. The adopting parents, who are residents of Australia, sought to adopt a child from Taiwan, a country that is not party to the Inter-Country Adoption Convention and is not recognised as a prescribed overseas jurisdiction under Australian law. The case necessitated the application of the New South Wales Adoption Act, as the parents were not residents or domiciled in Taiwan. The birth mother had given consent for the adoption in a Taiwanese court, but the court had to determine if this consent met the requirements of the Adoption Act.

The primary legal issue before the court was whether the consent given by the birth mother in Taiwan was sufficient for the purposes of the Adoption Act, or if an order dispensing with the need for her consent was warranted. The court examined the statutory framework and case law to ascertain whether the birth mother's consent in Taiwan could be recognised under Australian law and whether there were grounds to dispense with her consent. The court needed to decide if the birth mother was unable to be identified or found, and if there were other grounds to allow the adoption to proceed without her consent.

The court found that the birth mother had not been shown to be unable to be identified or found, and there were no apparent grounds to dispense with her consent. The Taiwanese court's consent did not satisfy the requirements of the Adoption Act. Consequently, the application for a consent dispense order was declined. The court held that the adoption application must proceed under the Adoption Act, which requires the birth mother's consent to be obtained in accordance with its provisions.

The court's decision resulted in the adoption application being declined, with no order dispensing with the birth mother's consent being made. This outcome ensured compliance with the legal requirements for adoption under the Adoption Act, safeguarding the child's welfare and the integrity of the adoption process.

Orders