re YSL (No 2)
[2013] NSWSC 2019
•04 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Application MKL & MJL; re YSL (No 2) [2013] NSWSC 2019 Hearing dates: In Chambers Decision date: 04 September 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Application for consent dispense order granted. Adoption orders made.
Catchwords: FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born 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 NSW Adoption Act - where consent dispense order applied for - whether birth mother unable after reasonable inquiry to be identified or found - "reasonable inquiry" - held, in the circumstances, further inquiry not reasonable. Legislation Cited: (NSW) Adoption Act 2000, s67(1)(a) Category: Consequential orders Parties: MKL and MJL (applicants)
YSL (child)File Number(s): A22/2013
Judgment
HIS HONOUR: In a judgment given on 14 May 2013 Application MKL & MJL; re YSL [2013] NSWSC 564, I concluded that I would be prepared to dispense with the consent of the child's natural father and with notice of the application to him, to approve as the child's names upon adoption Y-SDML, and - subject to the natural mothers' consent, or dispensing with it - to make an adoption order. However, as the adoption application was one that must proceed under the New South Wales Act and not by recognition of a foreign adoption, I could find no way of dispensing with the requirement for a further consent from the natural mother, who had given a consent in conformity with the requirements of the law of Taiwan, but not in conformity with the requirements of New South Wales law. As I could not make that consent dispense order, I was unable to make an adoption order, without further evidence, either that consent in accordance with the (NSW) Adoption Act had been given by the birth mother, or that she could not after reasonable inquiry be found. I therefore adjourned the proceedings to a date to be fixed by arrangement with the applicants, to permit them to make submissions and adduce further evidence, either in support of a consent dispense order, or of the giving of consent in accordance with the Act. I offered the parties an opportunity to make submissions to the contrary, which neither sought. I directed that the Registrar notify the Director General, NSW Department of Family and Community Services and the applicants of the decision and provide to each of them a copy of the judgment.
On 16 May 2013, the Registrar wrote to the applicants to that effect, and provided a copy of my judgment. On 26 July 2013, the Acting Director, Adoption and Permanent Care Services of the Department made an affidavit deposing to contact with Christian Salvation Service, Taiwan (CSS), through which about 20 inter-country adoptions are sourced from Taiwan each year. In a telephone conversation in June 2013, the Director of CSS informed the Acting Director, Adoption and Permanent Care Services that CSS would not contact the birth mother concerning her consent, as consent had already been taken and the adoption proceedings already finalised in Taiwan, and as the birth mother could not consent to the adoption of a child for which she no longer had any legal rights.
Subsequently, on 28 June, the Acting Director wrote to CSS requesting information as to their role and their position in relation to contacting the birth mother. CSS replied by letter dated 10 July 2013, relevantly as follows:
As you know, Christian Salvation Service (CSS) has provided all legal documents to the adoptive parents and to the Australian authorities in charge of immigration. If any additional copies of the relevant documents are required we can of course provide them from our files.
In the above case, a full and final adoption order has been issued from the Court in Taiwan. The mother's consent was verified by the court both in writing and by personal appearance before the court. There is no question that the legal guardian/guardians of any child legally adopted through our agency have satisfied the District Court Family Division judges of their consent. The District Court is also able to determine by independent investigation both the need for adoption, and the suitability of the adoptive parents.
Christian Salvation Service is concerned that after a full and final adoption in Taiwan, issuance of an Australian Immigrant Visa, and a year of post adoption follow-up by your government, we would receive a letter from your department stating "the Supreme Court is unable to rely upon the consent given by the birth mother in Taiwan."
As I have previously stated, CSS 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.
CSS hopes that this legal issue can be resolved in NSW since other states and certain other cases within NSW have no difficulty in issuing the Finalization of Adoption Order.
The Acting Director further deposes that it is important for the Department to maintain a good working relationship with CSS as a source of adoptions, and that if the Department were to ignore the protocol established by CSS and attempt to contact the birth mother directly, that may impact on the goodwill between the Department and CSS and jeopardise the on-going working relationship.
The content of "reasonable inquiry" for the purposes of Adoption Act, s67(1)(a), varies according to the circumstances of the case. In this case, the birth mother has given consent in accordance with the law of Taiwan, and appeared before the Taiwanese court to explain her reasons. In that country, she has no continuing parental rights or responsibility. There is an established protocol between the Department and CSS for forwarding letters and photographs about the progress of an adopted child, from the adoptive parents to the birth parents. CSS has agreement with the adoptive parents and the relinquishing parents that contact will be through the means of CSS.
In these particular circumstances, I do not consider that further inquiry is reasonable. I am satisfied that the natural mother cannot after reasonable inquiry on the part of the plaintiff be found. I am therefore prepared to make a consent dispense order with respect to the child's natural mother.
I make the following orders:
(1) Order pursuant to Adoption Act, s 67(1)(a) that the consent of the child's natural father be dispensed with.
(2) Order pursuant to Adoption Act, s67(1)(a) that the consent of the child's natural mother be dispensed with.
(3) Order pursuant to Adoption Act, s 88(4) that notice under s 88(1) of the Adoption Application to the child's natural mother and father be dispensed with.
(4) Order the adoption of the child YSL in favour of the adoptive parents MKL and MJL and approve the names Y-SDM as the forenames and L as the surname of the child.
(5) Direct that two certified copies of the order be released to the Department of Family and Community Services for transmission to Christian Salvation Services, Taiwan together a copy of the judgment of 14 May 2013 and this judgment.
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Decision last updated: 02 June 2014
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