re YSL (No 2) - [2013] NSWSC 2019

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…

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 (No 2)

Details

AGLC: re YSL (No 2) [2013] NSWSC 2019
Case: [2013] NSWSC 2019
Decision Date: 04 September 2013

CaseChat Overview and Summary

The case of re YSL (No 2) involves an adoption application filed in the Family Court of Australia. The applicant, a resident of New South Wales, sought to adopt a child born in Taiwan, with the consent of the child's birth mother, which had already been granted in a Taiwanese court. The application proceeded under the NSW Adoption Act, which requires the consent of the birth mother to be obtained in Australia. The primary legal issue was whether the court should dispense with the requirement for the birth mother's consent under section 45 of the NSW Adoption Act, given that she had already provided consent in Taiwan and could not be located after reasonable inquiry.

The court considered whether the birth mother could be found after reasonable inquiry and if further inquiry was warranted. The applicant argued that it was not possible to locate the birth mother, while the respondent contended that further efforts should be made to find her. The court examined the concept of "reasonable inquiry" and determined that, in the given circumstances, the efforts made were sufficient and further inquiry would not be reasonable. The court held that the birth mother could not be found after reasonable inquiry, and thus, the requirement for her consent could be dispensed with.

As a result of the court's reasoning and decision, the adoption application was approved under the NSW Adoption Act. The court granted the consent dispense order, allowing the adoption to proceed without the need for the birth mother's further consent. The final orders of the court provided that the adoption application be approved and that the child be declared an adopted child of the applicant. This decision ensures that the child can be provided with the stability and security of a permanent family through adoption, while also upholding the requirements of the NSW Adoption Act.

Orders