Suttikul & Anor and Suttikul & Ors

[2017] FamCA 70

FAMILY COURT OF AUSTRALIA

SUTTIKUL AND ANOR & SUTTIKUL AND ORS [2017] FamCA 70

FAMILY LAW – ADOPTION – Jurisdiction of the Family Court of Australia – Emphasised that s 60G of the Family Law Act 1975 (Cth) only empowers the Court to grant leave to applicants to commence adoption proceedings in the proper forum – Where there are adoption proceedings on foot in the Supreme Court of NSW – Decided this Court has no power, absent some underlying justiciable issue, to make declarations that are binding on and enforceable in other superior courts of record – Where there is no issue to be decided under the Family Law Act – Order that the application is dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of Process – Where the declarations sought by the applicants would render nugatory the pending hearing before the Supreme Court of NSW – Concluded the application was designed to outflank the immigration dispute pending before the Administrative Appeals Tribunal and the adoption proceedings pending before the Supreme Court of NSW – Order that the application is dismissed

Adoption Act 2000 (NSW)

Family Law Act 1975 (Cth), ss 60G, 69ZK

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), regs 24A, 25

Donnell & Dovey (2010) 237 FLR 53

APPLICANTS: Ms Suttikul & Mr Hillebrandt

RESPONDENTS: Ms Suttikul & Mr Suttikul

FIRST INTERVENER: Attorney-General of the Commonwealth

SECOND INTERVENER: Secretary of the NSW Department of Family and Community Services

FILE NUMBER: NCC 2234 of 2014

DATE DELIVERED: 3 February 2017

PLACE DELIVERED:	Newcastle
PLACE HEARD:	Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 3 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE FIRST INTERVENER: Ms Hager via telephone

SOLICITOR FOR THE FIRST INTERVENER:	Australian Government Solicitor
COUNSEL FOR THE SECOND INTERVENER:	Mr Boyd

SOLICITOR FOR THE SECOND INTERVENER: Crown Solicitor’s Office

Orders

IT IS ORDERED THAT

1. Leave is granted to the Secretary of the NSW Department of Family and Community Services to intervene in the proceedings (henceforth to be referred to as the Second Intervener).

1. The Initiating Application filed on 23 December 2016 is dismissed.

1. No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Suttikul & Anor & Suttikul has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC 2234 of 2014

Ms Suttikul & Mr Hillebrandt

Applicants

And

Ms Suttikul & Mr Suttikul

Respondents

And

Attorney-General of the Commonwealth
First Intervener

And

NSW Department of Family and Community Services
Second Intervener

Ex tempore

REASONS FOR JUDGMENT

1. The applicants in these proceedings are a married couple. They are Australians. 

2. In March 2016, they instituted proceedings in the Supreme Court of NSW to adopt the wife’s niece. She is a Country B national, but has lived with the applicants in Australia since August 2016 on a temporary student visa. The niece’s biological parents live in Country B and there is some doubt whether they were named as respondents to the Supreme Court proceedings.

3. The Supreme Court proceedings are not yet determined because a jurisdictional issue arose. White J was uncertain whether the Supreme Court had jurisdiction to grant the relief sought by the applicants and directed that question be separately determined as a preliminary issue. At a hearing in June 2016, the applicants successfully persuaded White J to remove the proceedings to the NSW Court of Appeal for separate determination of the jurisdictional issue. In November 2016, the Court of Appeal apparently declined to answer the separate question of jurisdiction until a factual determination was made about the niece’s “habitual residence” and therefore remitted the proceedings to the Supreme Court for that purpose. This Court is informed the Supreme Court is due to hear that issue over two days on 21 and 22 February 2017 (that is, several weeks hence). 

4. The Commonwealth and State Attorneys-General and the Secretary of the NSW Department of Family and Community Services intervened in the Supreme Court proceedings after notice of the jurisdictional issue was given to them by the Registrar of the Supreme Court on White J’s direction. 

5. The jurisdictional issue before the Supreme Court concerns the interplay between reg 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“the Hague Convention Regulations”) and Chapter 4 of the Adoption Act 2000 (NSW) (“the Adoption Act”).

6. The Commonwealth Attorney-General apparently contends the Adoption Act is inconsistent with the Hague Convention Regulations and, even absent any inconsistency, it is a necessary pre-condition to the grant of the relief sought by the applicants that they satisfy the provisions of the Adoption Act. 

7. The NSW Attorney-General and the Secretary of the NSW Department of Family and Community Services apparently contend the Adoption Act does not relevantly apply and the Supreme Court’s jurisdiction to hear and determine applications for adoption of children habitually resident in Hague Convention countries arises under the Hague Convention Regulations and not otherwise. 

8. The applicants apparently contend the Hague Convention Regulations do not apply to their application, the Hague Convention Regulations do not cover the legislative field, and there is no inconsistency between the Hague Convention Regulations and the Adoption Act. 

9. That legal conundrum contextualises the proceedings instituted by the applicants in this Court on 23 December 2016. They filed an Initiating Application seeking both final and interim relief, but both aspects of the application were listed before me today. 

10. The Commonwealth Attorney-General intervened as of right and counsel appeared at the hearing by telephone seeking dismissal of the application. 

11. The Secretary of the NSW Department of Family and Community Services sought and was granted leave to intervene. He was represented by counsel at the hearing and also sought dismissal of the application. 

12. The niece’s biological parents were joined as respondents to these proceedings, but they did not appear. There was no evidence adduced of their service with the applicants’ process, but that procedural irregularity is probably curable by the applicants if it was otherwise warranted. The applicants sought a procedural order that the respondents be permitted to appear by telephone from Country B with a Country B interpreter, because they anticipate the respondents are supportive of their application. Although the provenance of the document is not proven, a letter dated 5 January 2017, purporting to be written to the Court by lawyers acting for the respondents, was marked as an exhibit by the registrar on 18 January 2017 (Exhibit 1). The letter asserts the respondents’ consent to the application.

13. The substantive relief sought by the applicants is a series of declarations designed to “assist the parties and child in the NSW Supreme Court adoption matter” and were essentially:

    (a)a declaration the niece was and is no longer “habitually resident” in Country B;

    (b)a declaration that the principles of “loco parentis” established in Donnell & Dovey (2010) 237 FLR 53 at [76]-[83] do not apply to the applicants or to decisions concerning the niece because, in October 2014, this Court made parenting orders investing the applicants with parental responsibility for the niece and allowing her to live with them; and

    (c)a declaration that, pursuant to various Commonwealth statutory provisions, the Hague Convention Regulations are prevented “from interfering in any way” with the Supreme Court’s jurisdiction to deal with intercountry adoptions under the Adoption Act. 

14. The applicants’ application must be dismissed for two reasons: lack of jurisdiction and abuse of process. 

Lack of jurisdiction

1. This Court exercises original jurisdiction under various Commonwealth statutes, but it is important to understand the boundaries of such jurisdiction. 

2. Relevantly for the purposes of this case, this Court has no jurisdiction to grant child adoptions under State law. That is a matter for the Supreme Courts of the States and Territories under the legislation pertaining to their State or Territory.  The Adoption Act only vests power under its auspices in the NSW Supreme Court. The Family Law Act 1975 (Cth) (“the Family Law Act”) (s 60G) only empowers this and other courts to grant leave to an applicant to commence adoption proceedings in a proper forum. That is not the relief now sought by the applicants. Their adoption application is already pending in the Supreme Court. 

3. The Hague Convention Regulations are enacted pursuant to power granted by s 111C of the Family Law Act. The purpose of the Hague Convention Regulations is to legally implement Australia’s obligations under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Reg 24A(2) of the Hague Convention Regulations divests this Court of jurisdiction in intercountry adoptions if jurisdiction is invested in a State court. The NSW Supreme Court has such jurisdiction pursuant to reg 25, for which purposes Part 2 of Chapter 5 of the Adoption Act was enacted.

4. This Court has no power to proffer advice or opinions, much less make declarations that are binding on and enforceable in other superior courts of record, in isolation from an underlying justiciable controversy. There is no justiciable controversy before this Court. There is no issue to be decided about the niece under the Family Law Act or any other statute. 

5. The applicants purported to rely upon s 69ZK of the Family Law Act as the jurisdictional basis for one of the declarations, but they were in error. That provision only limits the power of this Court to make parenting orders in respect of children who are the subject of orders made under State child welfare law to ensure comity between orders made in respect of children by Federal and State courts under Commonwealth and State legislation. 

6. The application must be dismissed for lack of jurisdiction to entertain it.

Abuse of process

1. Even if there was jurisdiction to entertain the application, power should be exercised to dismiss it as an abuse of process. 

2. In aggregation, the declarations sought by the applicants in this Court are designed to render nugatory the need for the hearing scheduled before the Supreme Court later this month. In effect, the applicants expect this Court to decide the jurisdictional issue which is integral to the outcome of the Supreme Court litigation, presumably in expectation that any such declarations made by this Court could then be filed with the Supreme Court and circulated to the other parties in those proceedings as evidence of an unimpeachable determination of the issue, thereby creating an issue estoppel. Such developments would be a naked usurpation of the Supreme Court’s jurisdiction and power in the proceedings pending before it. 

3. There is another question about the applicants’ motives. The niece whom they wish to adopt was born in 1999 and is now aged 17 years and five months. One may wonder why a young woman of that age and maturity, who has the capacity to travel internationally, might need to be adopted so close to the attainment of her majority. The applicants provided the answer. Her presence in Australia is enabled by a temporary student visa, granted in August 2016 and due to expire in March 2019. In July 2016, an application was made for an adoption visa for her, but that application was refused in October 2016 and in November 2016 an application for administrative review of the decision was made to the Administrative Appeals Tribunal. That review is not yet complete. 

4. The applicant husband deposed in his affidavit filed on 23 December 2016 that the delay in the Supreme Court “will prejudice the child’s ability to obtain an adoption visa” and that the proceedings before this Court were to “save time and delays in the Supreme Court”. He asserted the visa needed to be granted, if at all, before the niece’s 18^th birthday. He acknowledged the grant of that visa is necessary for the niece to “enjoy the benefits of the life which was intended for her under the orders of this Court”; that being the parenting orders made in October 2014 by Benjamin J permitting the niece to live with the applicants. It must necessarily follow from the applicants’ evidence that this application is designed to outflank the immigration dispute over the niece’s visa, which dispute is currently pending before the Administrative Appeals Tribunal. 

5. I do not infer any pernicious intent on the part of the applicants. They have invoked legal process in a number of different ways to achieve their goal of the permanent residence of their niece with them in Australia. Nonetheless, their application in this Court is misguided. It amounts to an abuse of court process because, if relief of the type they contemplate was granted, it would subvert the current litigation in both the Supreme Court of NSW and the Administrative Appeals Tribunal. 

6. For those reasons the application is dismissed. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 3 February 2017.

Associate: 

Date:  14 February 2017