Supreme Court New South Wales Medium Neutral Citation: Adoption of N [2023] NSWSC 709 Hearing dates: 31 March 2023. Further evidence received on 5 April 2023. Date of orders: 6 April 2023 Decision date: 29 June 2023 Jurisdiction: Equity - Adoptions List Before: Henry J Decision: Adoption order under the Adoption Act 2000 (NSW) made in relation to the child known as N. Catchwords: CHILD WELFARE — adoption — adoption of child relative from Ghana — whether Court has jurisdiction to make order under s 23 of the Adoption Act 2000 (NSW) — whether Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption applies — where child has resided in Australia since February 2020 — whether child lost habitual residence in Ghana — whether child is non-citizen child for purpose of s 31 of the Adoption Act 2000 (NSW) — where child is over 12 but less than 18 years old and has given sole consent — where birth parents and Head of Ghana Central Adoption Authority have given consent — whether requirements under Adoption Act 2000 (NSW) satisfied — whether adoption order is in best interests of child — adoption order made — change of name approved Legislation Cited: Adoption Act 2000 (NSW) Adoption Regulation 2015 (NSW) Adoption Regulations, 2018 (L.I. 2360) Children's Act, 1998 (Act 560) Children's (Amendment) Act, 2016 (Act 937) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption Immigration (Guardianship of Children) Act 1946 (Cth) Cases Cited: Adoption of R [2017] NSWSC 270 LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 Punter v Secretary for Justice as the New Zealand Central Authority [2004] NZLR 28 Re Adoption Application by KGC and TGC [2007] NZFLR 851 Re LC (Children) (Reunite International Child Abduction Centre Intervening) [2014] All ER (D) 62 (Jan); [2014] 2 WLR 124 Re WS (No 2) [2017] NSWSC 475 Re WS (No 3) [2017] NSWSC 1160 Category: Principal judgment Parties: RM (First Plaintiff) NL (Second Plaintiff) Secretary, New South Wales Department of Communities and Justice (Intervenor) Representation: Counsel: Dr C McConaghy (Plaintiffs) Dr M Barnett SC (Intervenor) Solicitors: Freedman & Gopalan Solicitors (Plaintiffs) Crown Solicitor's Office (Intervenor) File Number(s): 2022/274493 Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW). JUDGMENT 1. These reasons deal with an application by a married couple, RM and NL (Adoptive Parents), for the adoption of RM's grandson, N, who was born in Ghana and is 14 years of age. 2. The Adoptive Parents are Australian citizens and reside in Sydney. They have provided care and financial support to N for many years. Since February 2020, N has lived with the Adoptive Parents in Australia having been granted various temporary visas. 3. N's birth parents are alive and reside in Ghana, but are unable to care for N. They consent to the Adoptive Parents adopting N and relinquished their rights to him as part of adoption proceedings in Ghana that did not ultimately progress (as described below). 4. The application was made by Summons filed on 9 September 2022, as amended on 9 December 2022. Given the jurisdictional issues raised by the application, the Attorney General for New South Wales and the Secretary for the New South Wales Department of Communities and Justice (Secretary) were invited to appear to assist the Court. The Secretary subsequently applied for and was granted leave to intervene in the proceedings on 23 November 2023. 5. The hearing of the application took place on 31 March 2023. 6. The main issue raised by the application was whether the Court had jurisdiction to make an adoption order under s 23 of the Adoption Act 2000 (NSW) (Adoption Act) as a relative adoption or whether the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Convention), of which Ghana is a non-member contracting party, and s 107 of the Adoption Act applied. This turned on findings of whether N was a habitual resident in Ghana and whether he had been moved to Australia for the purpose of adoption in Australia. 7. There were also issues raised regarding the need for and the form of the instruments of consent executed by N's birth parents, or the person holding parental responsibility for N, in circumstances where N had provided Sole Consent to his adoption in favour of the Adoptive Parents. 8. The Adoptive Parents and the Secretary provided detailed written submissions to the Court regarding these issues and the factors about which the Court had to be satisfied before making an adoption order under the Adoption Act, which were supplemented by oral submissions at the hearing. I was greatly assisted by the submissions from their Counsel. 9. At the conclusion of the hearing, I indicated that I was satisfied that the Court had jurisdiction to make an adoption order under the Adoption Act and that, upon receipt of further evidence about one matter, the Court would make an adoption order in favour of the Adoptive Parents, and gave summary reasons at the time. 10. The further evidence was received the following week. On 6 April 2023, I made the orders sought in the Amended Summons in Chambers that provided for the adoption of N by the Adoptive Parents. These are my detailed reasons for making those orders. Factual background and summary of evidence 1. In support of their application, the Adoptive Parents relied on affidavits they filed (one from RM and four from NL), affidavits from four personal character referees, each of whom had known RM and/or NL for at least 15 years and resided in Sydney, and an affidavit from RM's brother-in-law (whom I refer to as the Reverend). The Reverend lives in Ghana and is married to RM's sister. N lived with the Reverend and his family from 2014 to 2019. 2. The Adoptive Parents also relied on two affidavits from Stephen Dombo, Head of the Ghana Central Adoption Authority, and two affidavits from Joanna Wyles, an authorised Independent Adoption Assessor, who annexed reports prepared under s 91 of the Adoption Act. The Adoptive Parents also tendered copies of the following: 1. "Sole Consent to His or Her Adoption by a Child Who Has Attained the Age of Twelve Years" dated 29 August 2022 and signed by N, together with a "Statement of Person Qualified to Witness Consent" and a "Statement of Counselling" dated 29 August 2022 and signed by Jo Bonds, a Registered Counsellor (Exhibit B); 2. "Specific Consent to Adoption of a Child" dated 20 December 2022 and signed by N's birth father, together with a "Statement of Person Qualified to Witness Consent" and a "Statement of Counselling" dated 12 December 2022 and signed by Ms Bonds (Exhibit C); and 3. "Specific Consent to Adoption of a Child" dated 20 December 2022 and signed by N's birth mother, together with a "Statement of Person Qualified to Witness Consent" and a "Statement of Counselling" dated 12 December 2022 and signed by Ms Bonds (Exhibit D). 1. NL also gave oral evidence at the hearing. 2. The Secretary read two affidavits from Elizabeth Byrne, the Manager of Client Services at the Department of Communities and Justice (DCJ) in the Open Adoption and Permanency Services Unit, who annexed documents relating to the DCJ's assessment of the Adoptive Parents' previous adoption applications in 2005 and 2006, and correspondence between the DCJ and the Ghana Central Adoption Authority in 2020 and 2023. Facts 1. RM was born in Ghana in January 1957. He has lived in Australia since June 1989 and became an Australian citizen on 21 March 2007. He works as a Machine Operator for a food manufacturing company. 2. NL was born in Australia in January 1964 and is an Australian citizen. She works as a Liaison Officer at a healthcare company. 3. The Adoptive Parents were married in April 2006. They live in the southern suburbs of Sydney and have a daughter, A, who they adopted from Ghana in February 2011. 4. RM was previously married from 1988 to 1999 and has a son from that relationship, who is about 32 years old and lives in Australia. 5. In 2006, RM and NL were assessed by the DCJ as proposed adoptive parents for local and international adoptions and were approved to adopt a child from China. For reasons unrelated to this application, RM and NL did not proceed with that adoption process. 6. In 2008, RM became aware that he had another son in Ghana, SA, who is N's birth father. Around this time, RM travelled to Ghana and met SA and his girlfriend at the time, MS, who is N's birth mother. SA and MS were born in Ghana (dates of birth unknown). Following RM's return to Australia in 2008, RM remained in contact with SA. 7. N was born in Ghana on 31 January 2009. 8. After his birth, N lived with his birth parents in a property compound in Ghana which had been built and was owned by RM. 9. In March 2010, the Adoptive Parents travelled to Ghana and met N, who was one year old at the time. They remained in Ghana for approximately two years. During that time, they were involved in N's care, particularly NL, who fed, cleaned and clothed N, and took him to see a doctor when he was sick. She described N at that time as appearing to be neglected by his birth parents, hungry, unclean and running around the compound screaming and crying with no pants on, and she gave evidence that she spent a lot of time with N and developed an instant bond with him. 10. In 2011, N's birth parents separated. NL says that, following their separation, MS left the compound with N but returned when N was sick and at times when she felt she was unable to care for him. Shortly after, MS permanently left N at the compound with SA. 11. When NL and RM returned to Australia in late 2011 and early 2012 respectively, N was left in the care of SA and RM's elderly mother, with other members of RM's family assisting with caring for N and the Adoptive Parents providing financial support and keeping in constant touch with him from Australia. NL deposes that, in around mid-2013, N called her "mummy" for the first time. 12. In September 2013, following his mother's death, RM went to Ghana and stayed for a month. RM found that N was not being looked after and that MS had remarried and was not visiting N. Before returning to Australia, RM arranged to place N in the care of an adult second cousin (who had a small child of her own), as well as "Uncle Joe" and SA. The Adoptive Parents continued to provide financial support for N's care and kept in contact with him from Australia. 13. In 2014, the Adoptive Parents received reports of N's neglect from the Reverend who had taken N to see a doctor who had said that N was being neglected and needed to be removed from his birth father to a better situation. NL deposes that RM had to assume total control of N's care. According to the Reverend, in keeping with Ghanian tradition, RM was the head of the extended family and was responsible for what happened within it. 14. RM made arrangements for his sister and the Reverend to care for N at their home on a temporary basis. He told them that there were no other family members that he could trust and asked for N to live with them until the Adoptive Parents could get N to Australia. They agreed and, in 2014, N went to live with RM's sister and the Reverend. The Adoptive Parents funded all expenses relating to N's care and received regular reports from the Reverend that N was okay and doing well in his school reports. 15. By this time, the Adoptive Parents were considering ways in which N could live with them in Australia. They discussed adoption as one option and spoke to the Immigration Department about which visas would be available to N. 16. On 28 July 2014, the Adoptive Parents applied for an Orphan Relative Visa for N to travel and live with them in Australia. 17. On 30 July 2015, the application for the Orphan Relative Visa was refused on the basis that N did not qualify as his birth parents were not deceased. The refusal letter refers to a letter from a doctor stating that N had been neglected, exposed to ill health and malnutrition, and that it would be in N's best interests not to return to his birth parents. The refusal decision was justified on the grounds that the birth parents' unwillingness or inability to provide care was due to their financial situation and lack of support rather than any form of permanent incapacitation and, since N's birth parents were not dead, permanently incapacitated or of unknown whereabouts, N failed to satisfy the requirements for the Orphan Relative Visa. The refusal letter also notes that no attempts appeared to have been made to follow the path of formal adoption available in Ghana. 18. In or around August 2015, the Adoptive Parents decided to commence an adoption process in relation to N in Ghana. NL deposes that their application progressed well until a new government came into power and the Adoptive Parents were told that they needed to commence the process again with new paperwork. NL had spoken to MS about their plan to legally adopt N in 2014, who had said to NL, "please go ahead". 19. In September and October 2016, the Adoptive Parents and A returned to Ghana for a month and saw N who was at that time living with RM's sister and the Reverend. NL says that N seemed happy but she and RM noticed issues between N and the Reverend's younger son who was aggressive to N and sometimes hit him. 20. In 2017, the Adoptive Parents retained a migration agent to explore other visa options for N to come to Australia and live with them. They were advised that Student and Adoption Visas were not possible. In late 2017, the Adoptive Parents applied for a Visitor's Visa for N. That visa was refused on 18 January 2018. The Adoptive Parents appealed to the Administrative Appeals Tribunal (AAT) on the advice of their migration agent. 21. The Adoptive Parents kept in contact with N while they were in Australia by FaceTime and phone calls, and received regular reports about N, including reports that his schooling was going well. 22. In early 2019, the Adoptive Parents and A travelled to Ghana and went on a holiday with N to Mauritius. Upon their return to Ghana, N refused to go back to live with RM's sister and the Reverend. NL gives evidence that N was not treated well while he was in their care. N had been hit by RM's sister with a wooden kitchen tool on his head and shoulders, and NL saw a photo of N with a swollen face and cracked tooth. NL deposes that N described being bullied, beaten and shown no love, and that he did not receive birthday presents or toys of his own despite the Adoptive Parents sending money to pay for such things. 23. N did not return to the care of RM's sister and the Reverend. RM established N in the compound in his own room, with a phone and television, and arranged for Uncle Joe, SA (when he was at the compound) and N's neighbours to assist N with looking after himself, and for the Reverend to check on him each week. The Adoptive Parents sent money to Uncle Joe, SA and the Reverend to fund N's care. They kept in contact with N by regular FaceTime calls to see how he managed. NL says that N was happy when they spoke to him but, in September 2019, they received reports that he was doing poorly at school, one of his relatives had stolen from him and he had been beaten on occasion, and so the Adoptive Parents arranged an urgent trip to Ghana for Christmas. 24. On 1 November 2019, the AAT granted the Adoptive Parents' request for a review of their Visitor's Visa application and remitted the application for reconsideration. 25. The Adoptive Parents remained in Ghana from 23 December 2019 to 19 January 2020 to spend time with N. During this period, they arranged for N to undertake health checks that had been requested by the Australian Immigration Department. 26. Also during this period, action was taken to progress the Adoptive Parents' adoption of N in Ghana. 27. On 14 January 2020, the Deputy Director of the Department of Social Welfare, representing the Regional Director of Social Welfare in Ghana, filed a Motion on Notice in the High Court of Justice, Accra, Ghana, for a relinquishment confirmation order in respect of N's birth parents under s 79 of the Children's (Amendment) Act, 2016 (Act 937) (Ghana Act 937) and s 29 of the Adoption Regulations, 2018 (L.I. 2360) (Ghana Adoption Regulations) upon the social enquiry report and affidavit filed in support of the application. 28. The affidavit in support is from Simon Nangwa, Deputy Director of the Department of Social Welfare, representing the Regional Director of Social Welfare in Ghana, and is dated 15 January 2020. It states that N's birth parents neglected N from when he was one year old, the Adoptive Parents (referred to as the "applicants" and the "paternal grandfather and wife") had been caring for N since he was one year old, the applicants were desirous of adopting the child and the birth parents had consented to the adoption after all the implications were explained to them. 29. The social enquiry report is a Child Study Report dated 14 January 2020 and prepared by Charleen Adongo, Principal Social Development Officer of the Department of Social Welfare in Ghana, that states, amongst other things: the birth parents have given their consent after all the implications of adoption were explained to them; the birth mother is married with children and unwilling to care for N; the birth father is single and not in a position to care for N; and doctors recommend that N should not be returned to his biological parents due to neglect. 30. Other documents appear to have been prepared as part of the adoption process in Ghana, namely: 1. "Statements of Voluntary Relinquishment" pursuant to the Ghana Adoption Regulations, signed by each of N's birth parents on 27 November 2019. These Statements record that N's birth parents confirm their decision to relinquish their parental rights and responsibilities towards N, they were provided with psycho-social services by the Department of Social Welfare and they were given 30 days to reconsider; 2. Statutory Declarations made by each of N's birth parents on 27 November 2019 consenting to N visiting his grandparents in Australia; and 3. a Statutory Declaration made by the Reverend on 18 October 2019 that states that he is N's "Guardian and doing so on behalf of his grandfather [RM]… who lives in Australia as an Australian Citizen" and that he has given his permission and consent to N to travel to Australia to spend some time with his relations in Australia. 1. On 15 January 2020, the High Court of Justice, Accra, Ghana, made an order confirming relinquishment of N by his birth parents and further ordered that N be placed within the care of the Director of Social Welfare (Relinquishment Order). 2. On 13 February 2020, N was granted a Visitor's Visa (Sponsored Family; Subclass 600) that provided him with single entry in Australia for six months. 3. N left Ghana on 22 February 2020 and arrived in Sydney on 24 February 2020. The Adoptive Parents had organised N's flights and travel arrangements. 4. NL gave evidence that, at this time, the purpose of N's arrival in Australia was for N to visit Australia, spend time with their family, travel around with them and get a taste for Australian schooling. She said that, when N left Ghana in February 2020, he left nothing of value save for a few toys of no monetary or emotional value and he brought everything that was "near and dear to him". She also gave oral evidence that she and RM had told N about him moving to Australia and that they were doing paperwork so they could "all live together as a family" in Australia. 5. On 29 June 2020, Mr Dombo sent an email to the Intercountry Adoption section of the DCJ attaching a document headed "Declaration of [N] (11 years old) as Adoptable". It is signed by Mr Dombo and states: the Adoptive Parents have contacted the Ghana Central Adoption Authority with a request to adopt N; RM is the paternal grandfather and legally appointed guardian of N; and it will be in the best interests of N to be adopted by the Adoptive Parents. Mr Dombo requested for a home study report to be provided in relation to the adoptive parents to enable the "office [to] work on their application". 6. On 30 June 2020, in response to Mr Dombo's email, the DCJ sent a letter to Mr Dombo stating that Australia is a party to the Convention and that for the DCJ to consider the adoption it must be assured that the child is legally free and available for adoption in his country of birth, it must consider a full child study that outlines why adoption is in the child's best interest and it must be satisfied that all placement options with other family members have been explored. 7. On or about 30 July 2020, the Adoptive Parents made an application under exceptional circumstances for N to stay in Australia, which was available as a result of COVID-19 travel restrictions. On 14 August 2020, N was granted a Bridging A Visa. 8. On 27 August 2020, Mr Dombo sent a letter to DCJ that enclosed a "Department of Social Welfare Home Study Report" and bonding pictures of the Adoptive Parents and N. The Home Study Report is undated and was written by Ms Adongo and supervised by Phyllis Senyo, Regional Director of the Department of Social Welfare in Ghana. It states: N is a vulnerable child as he receives no care from his birth parents; the Adoptive Parents are the main source of financial help and have assumed parental responsibility for N; no other family members in Ghana or abroad are willing or capable of raising N; N is very well cared for by and bonded with the Adoptive Parents; N refers to the Adoptive Parents as "mother" and "father"; N talks everyday with the Adoptive Parents and A via video calls; the Adoptive Parents have the best interests of N at heart; and N lives with his paternal great-aunt and the Reverend, together with their three children. The latter statement is not consistent with the affidavit evidence on this application which indicates that, from early 2019, N did not live with the Reverend and his wife. 9. On 29 September 2020, the DCJ sent a reply letter to Mr Dombo advising that it was not satisfied that adoption was in N's best interests nor in accordance with the principles set out in the Convention. The letter notes that the Home Study Report does not show the current whereabouts of N's birth parents or what attempts had been made to locate them, that the DCJ was unable to determine what placement options had been explored with family members in Ghana and that it had not been established that intercountry adoption with family members in New South Wales was considered best for N. 10. Pausing here, at the hearing, Counsel for the Secretary acknowledged that when the 29 September 2020 letter was written, the DCJ was unaware that N's birth parents had relinquished their rights in relation to N and that other family members in Ghana were unable to provide proper care for N, as disclosed by the evidence on this application. Counsel for the Secretary also advised the Court that the Secretary no longer took the view that there were alternative options available in Ghana to meet N's placement needs and that it took no issue with the adoption of N in favour of the Adoptive Parents being in N's best interests. 11. It appears that the 29 September 2020 letter may not have been received by Mr Dombo in 2020. According to an email dated 27 March 2023 that Mr Dombo sent to the Secretary's solicitor after these proceedings were commenced, the Ghanian adoption application "ceased pending receipt of the said 'Home Study Report'" (being Mr Dombo's request for a report from the DCJ) and formally ceased on 29 June 2020 as no other process was followed. 12. On 17 May 2021, NL sent an email to her local member of parliament (MP) requesting assistance as the adoption process had stagnated in her dealings with the DCJ. On 27 May 2021, the MP sent a letter to the Acting Minister for Families, Communities and Disability Services regarding the adoption and noting the delay in finalising the matter. 13. In June 2021, NL was contacted by the Ghanian Adoption Department which confirmed that the adoption application in Ghana had stalled. On 18 June 2021, Ms Adongo sent NL an email that the DCJ had sent to Mr Dombo on 3 June 2021 that referred to the DCJ's 29 September 2020 letter. NL gave oral evidence that she could not recall seeing the 29 September 2020 letter and she understood that the Ghanian adoption process did not complete as they were waiting for the Australian department to make an assessment of she and RM as prospective adoptive parents, which did not occur. Australian adoption process 1. Due to the delays and issues with the adoption process in Ghana, the Adoptive Parents made contact with lawyers in Sydney and decided to pursue an adoption application in this Court under the Adoption Act. 2. On or about 28 January 2022, Ms Senyo sent a letter to Freedman & Gopalan Solicitors (the Adoptive Parents' lawyers in these proceedings) in response to the request for intercountry adoption of N that was copied to Mr Dombo headed "Consent for the adoption of [N]..." which states that: Ms Senyo is the guardian ad litem and bearer of N's legal rights pursuant to the Relinquishment Order; she has received and read the mandatory written information pursuant to the New South Wales adoption laws and the DCJ; she consents to proceed with the adoption of N by the Adoptive Parents; and, being an intercountry adoption, the laws of Ghana designate Mr Dombo to be the person to deal with in relation to the adoption. 3. On 23 August 2022, Ms Bonds met with N to assess his capacity to give informed consent to his own adoption in New South Wales. Ms Bonds' report records that: N said he lived with his "mummy, daddy and sister" (referring to RM, NL and A); N was aware that the Adoptive Parents were his prospective adoptive parents and that his birth parents lived in Ghana; N could not recall much about his birth mother; N referred to his birth father as "cranky"; N knew he had three younger siblings in Ghana and said he kept in touch with his birth father and siblings by FaceTime calls; when asked why he wanted to be adopted, N told Ms Bonds "so I don't have to be punished all the time" and clarified that he was referring to his treatment in Ghana; and N confirmed that he felt safe and happy with the Adoptive Parents. In Ms Bonds' opinion, N had sufficient capacity, understanding and maturity to give consent to his adoption. 4. On 29 August 2022, Ms Bonds witnessed N's execution of an instrument of Sole Consent in relation to an adoption order in favour of the Adoptive Parents. 5. On 9 September 2022, the Adoptive Parents filed their Summons for adoption in this Court. 6. On 24 February 2023, Mr Dombo sent an email to Freedman & Gopalan Solicitors stating that, as Head of the Ghana Central Adoption Authority, he is authorised to attest to the execution of an instrument of consent to the adoption of a child for intercountry adoption processes in line with Ghanian laws. 7. In an email sent to the Crown Solicitor's Office dated 27 March 2023, Mr Dombo advised that there was no legal guardianship given to the Reverend (rather, it was an arrangement between the family) and the legal rights in relation to N were held by the Department of Social Welfare pursuant to the Relinquishment Order. 8. Mr Dombo also gives evidence that Ms Senyo retired in or around March 2022, there was a restructuring of the Departments, all duties regarding N were taken over directly by the Central Adoption Authority and, as the Head of the Central Adoption Authority, he is the bearer of N's legal rights. 9. On 29 March 2023, Mr Dombo received counselling from Ms Bonds in relation to N's adoption by the Adoptive Parents and a "Statement of Counsellor" was certified by Ms Bonds that day. 10. On 4 April 2023, Mr Dombo executed a "Specific Consent to Adoption of a Child" dated 4 April 2023 in relation to the adoption of N by the Adoptive Parents that was witnessed by an Authorised Consular Employee at the Australian High Commission Office in Ghana, who also executed a "Statement of Person Qualified to Witness Consent" dated 4 April 2023. 11. Mr Dombo gives evidence that he perused the mandatory written information sheet in relation to the adoption in around November 2022, he received counselling on 29 March 2023 and he had been informed and understood that, on the making of an adoption order, his legal rights to N would cease and would be transferred to the Adoptive Parents. He understood that he held a right to withdraw his consent to the adoption for 30 days from the date on which he provided his consent and he indicated that he would not be withdrawing his consent as it was in N's best interest for the adoption order to be granted. N's present circumstances 1. Since arriving in Australia on 24 February 2020, N has lived at all times in Sydney with RM, NL and A. He refers to them as "dad", "mum" and "sister" respectively. 2. N is currently in year eight at a sports high school in Sydney's southern suburbs, having attended a local public school for years 5 and 6 in 2020 and 2021, and having started high school in 2022. N attends extra-curricular tutoring activities for English and maths and enjoys playing soccer recreationally. The Adoptive Parents are listed as his guardians on all school and extra-curricular forms. 3. Affidavits filed by referees for the Adoptive Parents refer to observations that: the Adoptive Parents and N share a strong bond; N seems cheerful and happy around the Adoptive Parents; the bond between A and N is precious and they consider each other siblings; on 22 March 2020, when asked what he thought about Australia and whether he missed Ghana, N said words to the effect of "I do not miss Ghana. I love being here with Mummy, Daddy and [A]. I feel safe and they are my only family"; N has settled well into his Sydney family life; and N is progressing at school and in sports. 4. In addition to the Bridging A Visa granted on 14 August 2020, N has lived in Australia pursuant to the following visas: 1. a Visitor (Subclass 600) Visa granted on 11 May 2021, allowing N to stay in Australia for three months; 2. a Bridging A Visa granted on 10 August 2021, allowing N to remain in Australia while his Visitor (Tourist; Subclass 600) Visa application was processed; 3. a Visitor (Subclass 600) Visa granted on 1 September 2021, allowing N to stay in Australia for six months; 4. a Bridging A Visa granted on 27 February 2022, allowing N to remain in Australia while his Visitor (Tourist; Subclass 600) Visa application was processed; and 5. a Visitor (Subclass 600) Visa granted on 2 December 2022, allowing N to stay in Australia for three months. 1. Due to the COVID-19 pandemic and its ensuing travel restrictions and visa extensions, N has not travelled beyond Australia since his arrival on 24 February 2022. 2. N has one younger biological sibling and two younger half-siblings (children of his birth mother), all of whom live in Ghana. N has not met or spoken to his two half-siblings. N was not aware of his biological sibling until he met him in or around 2019. 3. Since N's arrival in Australia, N has spoken to his birth father three times via FaceTime on 16 June, 15 July and 1 September 2022. On the latter occasion, N spoke with his biological sibling who was present with his birth father at the time of the call. N has not been in contact with his birth mother or half-siblings. Ms Wyles' Reports 1. Joanna Wyles, an authorised Adoption Assessor, prepared two reports concerning the proposed adoption in accordance with s 91(1) of the Adoption Act. The facts contained in those reports were not in dispute. 2. Ms Wyles' first report was prepared on 25 September 2022. It records that she had interviewed the Adoptive Parents, N and A at the Adoptive Parents' home in Sydney and had spoken to N's birth parents from Ghana via video conference with the assistance of an interpreter. 3. Ms Wyles' first report describes N's early life of neglect and abuse in Ghana and recommends that an adoption order be made given the many emotional and legal benefits to N. Her report records the following: 1. when asked about the care he received in Ghana, N described neglect and abuse, including physical abuse, and said that he never felt loved or valued in the care of the Reverend and RM's sister. N considered the Adoptive Parents to be his parents and called them "dad" and "mum" although he knew RM is his grandfather. N considered A to be his sister and felt valued and loved by the Adoptive Parents and believed them to be committed to him and his future in the family. N understood that adoption would mean that the Adoptive Parents would become his legal parents and considered adoption to be really important to him, saying it is "something that I want, so that I don't have to feel pain". N was worried about returning to Ghana and being hit again. N felt closer to the Adoptive Parents than his birth parents and did not express any real interest in having regular contact with his birth parents, stating that he did not know his mother; 2. the Adoptive Parents tried to support other family members in Ghana to care for N but there were none who were willing or in a position to care for him. They considered adopting N for some time, have experience with adoption through their adoption of A, are aware of the implications of making an adoption order and that they will have full financial responsibility for N, and they "decided to bring [N] to Australia in February 2020 to live with them"; and 3. N's birth parents made a decision to give up care for N as neither was able to care for him or meet his needs, they had already agreed to the Adoptive Parents adopting N and understood that an adoption order would mean that they are no longer N's parents. They did not wish to have contact with N or have a relationship with him, did not request an adoption plan, understood that if they wanted information about N they could contact the Adoptive Parents and they believed that adoption was best for N with no other options for his care. 1. Ms Wyles considered the alternatives to making an adoption order for N, including a guardianship order. Ms Wyles' report notes that a guardianship order may not provide N with permanent residency in Australia. 2. Ms Wyles' second report is dated 27 March 2023 and is also made in accordance with s 91(1) of the Adoption Act. In the report, Ms Wyles concludes that there is no other option or order that best serves N's needs both in the present and the future, and recommends an adoption order be made in favour of the Adoptive Parents. The second report records that Ms Wyles' views and recommendations regarding N's proposed adoption have not changed following her review of the further materials provided to her, namely, the affidavits filed in these proceedings by the Secretary, the further affidavits from NL, the Specific Consents from N's birth parents and the confirmation of counselling from Ms Bonds. Jurisdiction 1. As set out by Hallen J in Re WS (No 2) [2017] NSWSC 475 (Re WS (No 2)) at [113], there are four routes to adoption in New South Wales which are as follows: "(a) The adoption of a child pursuant to s 23 of the Act. (b) The adoption of a child from another country in accordance with the provisions of the Act that comply with intercountry adoptions; that is, adults resident in one country adopt a child resident in another country pursuant to Chapter 4 of the Act. (c) The adoption of a child, recognised by the law of New South Wales, and effected under the law of any other country; (d) The adoption under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption signed at the Hague on 29 May 1993 ("the Convention") in circumstances where there is a child habitually resident in one Contracting State ("the State of origin") who has been, is being, or is to be, moved to another Contracting State ('"the receiving State"'), either after her or his adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin. The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) ("the Regulations") give effect to Australia's obligations under the Convention." 1. The application to adopt N was made pursuant to s 23 of the Adoption Act. The issue raised was whether this Court had jurisdiction to make an adoption order under that section as a relative adoption or whether the intercountry adoption provisions under s 107 of the Adoption Act, the Convention and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (Convention Regulations) applied. It was common ground that the Adoptive Parents had not complied with the requirements of s 107 of the Adoption Act or the Convention Regulations. Further, and despite the Adoptive Parents having taken steps to pursue adoption under the laws of Ghana, as no adoption order had been granted in that country, there was no foreign adoption that could be recognised by the law of New South Wales. 2. Section 23 of the Adoption Act provides as follows: 23 Jurisdiction (1) Subject to this Act, the Court may make an order for the adoption of a child (an adoption order) solely in favour of one person or jointly in favour of a couple. (2) The Court must not make an adoption order unless, when the application for the order is filed: (a) the child is present in the State, and (b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State. (3) For the purposes of this section, if the Court is satisfied that the child was present in the State, or that the applicant or each applicant was resident or domiciled in the State, for a period of 3 months immediately before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that— (a) the child was present in, or (b) that the applicant or each applicant was resident or domiciled in, the State when the application was filed. (4) The Court has jurisdiction under this section to make an adoption order despite any rule of private international law to the contrary. (5) Subject to Part 2 of Chapter 5, the Court has jurisdiction, under and in accordance with this Part, to make an adoption order with respect to the intercountry adoption of a child referred to in Part 2. 1. N is a "child" under the Adoption Act as he is "a person who is less than 18 years of age". 2. Under the Adoption Act, "intercountry adoption" is defined as "the adoption by a person resident or domiciled in New South Wales of a non-citizen child from a country outside Australia". Non-citizen child 1. The term "non-citizen child" is defined by the Adoption Act as having the same meaning as in the Immigration (Guardianship of Children) Act 1946 (Cth) (Immigration Act). 2. The Immigration Act defines "non-citizen child" to mean a person who is a non-citizen child under s 4AAA(1) or (4) of that Act. Section 4AAA of the Immigration Act provides as follows: 4AAA Non-citizen child (1) Subject to subsections (2) and (3), a person (the child) is a non-citizen child if the child: (a) has not turned 18; and (b) enters Australia as a non-citizen; and (c) intends, or is intended, to become a permanent resident of Australia. (2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of: (a) a parent of the child; or (b) a relative of the child who has turned 21; or (c) an intending adoptive parent of the child. 1. As the expression "non-citizen child" is defined to mean a person who is not 18 and not an Australian citizen, N is such a person unless either of sub-sections (2) or (3) apply. Sub-section (3) is not applicable as it is concerned with a child in respect of whom a "prescribed adoption class visa" was in force and no such visa was in force in relation to N. 2. The Adoptive Parents and the Secretary submitted, and I accepted, that N was not a "non-citizen child" under the Immigration Act. In my view, s 4AAA(2)(b) applied in this case, such that s 4AAA(1) did not. This was because N entered Australia on 24 February 2020 under the care of a relative and for the purpose of living in Australia under the care of a relative. 3. A "relative" is defined by s 4 of the Immigration Act to include: 4 Definitions … (a) a parent of the person; and (b) anyone who is a step-parent of the person or would be except that he or she is not legally married to his or her de facto partner (within the meaning of the Acts Interpretation Act 1901); and (c) anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) were a relative of the person. 1. As the Secretary submitted, while s 4(c) of the Immigration Act is somewhat convoluted, RM would be a relative of N given he is a parent of a parent (N's birth father). Similarly, NL would be a relative as a step-parent of N's birth father. N was under the Adoptive Parents' care when he came to Australia as they looked after him and made provision for him, such as in their making of arrangements for him to attend and participate in extra-curricular activities. 2. Thus, I was satisfied that N was not a "non-citizen child" for the purposes of the application. It followed that s 31 of the Adoption Act, which provides that the Court must not make an order in relation to a non-citizen child as referred to in Part 2 of Chapter 5 unless certain things have been done and complied with, did not apply. Habitual residence 1. Part 2 of Chapter 5 of the Adoption Act is headed "Intercountry and Overseas Adoptions". Section 103 of the Adoption Act sets out the objects of Part 2 as follows: 103 Object of Part The object of Divisions 1–3 is to provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth law. Note— For the effect of doing this, see regulation 34 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 and regulation 8 of the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 1998, of the Commonwealth. 1. Section 107 of the Adoption Act provides as follows: 107 Adoption in NSW of child from Convention country by parents from NSW (1) The Court may, on application by the Secretary or the principal officer of an accredited adoption service provider that may provide intercountry adoption services, make an order for the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who are habitually resident in the State. Note— Part 3 of Chapter 4 provides for assessment of the suitability, and selection, of persons to adopt by the Secretary or principal officer. (2) The Court may make the order only if satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child, and (b) the child is allowed to reside permanently in Australia. (3) The Court must not make the order if the child is not in Australia. (4) For the purposes of subsection (2) (b), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth or the State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child so residing. Note— If a child enters Australia before the order is made, the child may be subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth. See section 77 of this Act. 1. Ghana is a non-member contracting party to the Convention. The Convention entered into force for Ghana on 1 January 2017. There is no formal intercountry agreement between Australia and Ghana but Ghana is a "Convention country" under r 4(b) of the Convention Regulations. 2. Article 2 of the Convention provides as follows: Article 2 (1) The Convention shall apply where a child habitually resident in one Contracting State ('the State of origin') has been, is being, or is to be moved to another Contracting State ('the receiving State') either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purpose of such an adoption in the receiving State or in the State of origin. (2) The Convention covers only adoptions which create a permanent parent-child relationship. 1. Regulation 15 of the Convention Regulations relevantly provides as follows: 15 Adoption in Australia of a child from a Convention country (1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with: (a) the Convention; and (b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and (c) the laws of the Convention country. 1. Regulation 15 goes on to set out the manner in which persons must apply to the Court for an adoption order granted under the Convention. 2. The Convention is incorporated into the Adoption Act and has become part of the law of New South Wales: Re WS (No 2) at [131]. 3. Having regard to the terms of the Convention and s 107 of the Adoption Act, the questions for the Court's consideration were whether N was a habitual resident in Ghana, whether N was moved to Australia for the purpose of adoption and at what point in time habitual residence should be assessed given the circumstances of this case. 4. The Secretary's submissions referred to the legal principles relevant to this issue, including Hallen J's decision in Re WS (No 2). The applicable legal principles were not disputed by the Adoptive Parents. I agree and have applied those principles in these reasons. 5. The question of whether N is a habitual resident of Ghana or has lost his habitual residence in that country is a question of fact. In Re WS (No 2), at [163]–[201], Hallen J examined the authorities that considered the meaning and relevant factors to a finding of habitual residence. Reference was made to LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 (LK v Director-General) in which the High Court (French CJ and Gummow, Hayne, Heydon and Kiefel JJ) stated at [22]–[25]: "… The search must be for where a person resides and whether residence at that place can be described as habitual. … First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence. … Use of the term "habitual residence" identified the required connection between a person and a particular municipal system of law amounts to a rejection of other possible connecting factors such as domicile or nationality… Yet it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individuals activities"." 1. In Re WS (No 2) at [175], Hallen J summarised some of the factors that may be relevant to a finding of habitual residence by reference to the High Court's decision in LK v Director General as follows: "(a) The search must be for where a person resided, and whether residence at that place, can be described as habitual (at [22]); (b) The centre of the child's personal and family life, as disclosed by the facts of her, or his, activities (at [25]); (c) Where the person, or persons, who are caring for the child live – where those persons have their habitual residence (at [27]); (d) Whilst it is not to be given controlling weight, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides (at [28]); that includes the intentions of a number of different, but relevant, persons, including the child's intentions; (e) A person may cease to reside habitually in one place without acquiring a new place of habitual residence. Absence of a final decision positively rejecting the possibility of returning to the previous place of habitual residence in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually (at [25], [32] – [33]); (f) The question of habitual residence will fall for decision in a very wide range of circumstances. An examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them: at [35]…" 1. Hallen J observed that the authorities recognise a distinction between a child ceasing to be habitually resident in one country and subsequently becoming habitually resident in another country: Re WS (No 2) at [179]. 2. Habitual residence can be lost, in some circumstances, relatively quickly. In Re LC (Children) (Reunite International Child Abduction Centre Intervening) [2014] All ER (D) 62 (Jan); [2014] 2 WLR 124, Lady Hale noted as follows at [63]: "The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another." 1. In Punter v Secretary for Justice as the New Zealand Central Authority [2004] NZLR 28 at [66], the Court of Appeal of Wellington found that where there is a settled purpose, habitual residence can be lost immediately, stating as follows: "If a person has a settled purpose to leave the place of his or her habitual residence and does so in accordance with that purpose, then the former residence is lost immediately. The new place will only become habitual residence, however, if there is a settled purpose to take up that place as a habitual residence and reside there for an appreciable period of time." 1. The age of the child who is the subject of the adoption and his or her state of mind may be relevant factors in assessing the degree of the child's integration into the receiving State, and hence whether they have lost habitual residence and acquired a new one: Re WS (No 2) at [193]. 2. While intention alone is insufficient, examination of a person's intention will usually be relevant to a consideration of whether that person has lost or abandoned their habitual residence. A person who leaves the State of origin intending not to return is an example of where intention is a relevant consideration, with the intention of the child and the persons who in fact have day-to-day care of the child being necessary to consider: Re WS (No 2) at [195]–[196]. 3. Where a child's initial move from an established habitual residence was clearly intended to be for a specific limited duration, there may be a finding of no change in habitual residence. However, a child may lose habitual residence, although an examination of the facts of all kinds, including emotional and psychological elements, may point to the child's original habitual residence having been abandoned at or around the time of the move, even if moving to a place where it was intended that they were to live for a limited time: Re WS (No 2) at [195]–[199] and the cases there cited. 4. In Re WS (No 2), Hallen J held that the date at which the Court determines a child's habitual residence in the context of a child who has been brought to Australia for the purpose of adoption is the date the Court is first seized with the application and the movement of the child is able to be established: at [217]. Hallen J reasoned that the focus of the application of the Convention is on the movement of a child habitually resident in the State of origin to the receiving State where the proposed adoptive parents are habitually resident and at the date of movement it should be clear whether or not the Court has jurisdiction: at [218]–[219]. His Honour went on to state at [220]–[221]: "At that time, the Court must consider whether the child "has been, is being, or is to be, moved… for the purposes of… adoption", and, at whichever one of those times applies, whether she, or he, had, or has, habitual residence in the State of origin. If the child has been moved, then the date of the child's move is the relevant date for determining whether or not she is habitually resident there. Thus, in the circumstances of this case, the relevant date for determining the question of habitual residence is when WS "has been… moved… for the purposes of… adoption", from Thailand to Australia, being 6 March 2016, the day before the date of the application for the order for adoption had been filed." 1. In Re WS (No 2), Hallen J held that the child, WS, had abandoned and lost her habitual residence in her country of origin, Thailand, when she moved to Australia on 6 March 2016 for reasons that included: WS, her parents and the proposed adoptive parents all considered that WS's long term future was to live in Australia even though the visit commencing on 7 March 2016 was temporary because of her visa; when WS moved it was with a settled purpose to leave the place of her habitual residence; while they knew that WS must return to Thailand to continue to make an application for another visa, the grant of that visa would enable her to return for a longer and more permanent period, which she did successfully; and, on her return to Australia, WS went back to school and resumed friendships and reintegrated into the family: at [226]. 2. The Adoptive Parents submitted that N has been a habitual resident in Australia since he arrived on 24 February 2020 and that their application should be considered as an adoption of a child habitually resident in Australia by persons habitually resident in Australia, such that this Court has jurisdiction to hear and determine the Amended Summons as an intrafamily adoption, and not under the Convention or s 107 of the Adoption Act. 3. Their submissions emphasised that they wanted N to live with them in Australia for some time. They submitted that the Court should have regard to the fact that N has been living with the Adoptive Parents as part of their family, has settled into school and has undertaken extra-curricular activities in Australia, all of which point to N giving up his habitual residence in Ghana. They also submitted that, at some point in time between 24 February 2020 and the date on which the Summons was filed, Australia became N's place of habitual residence, which is sufficient for the Court to conclude that it has jurisdiction. 4. The Secretary submitted that there were two possible dates from which habitual residence could be determined for the purpose of this application. 5. The first was the date on which N moved from Ghana to Australia on 24 February 2020, which is consistent with Hallen J's approach in Re WS (No 2). It was submitted that the date of movement being the relevant date for determining habitual residence is consistent with the objects of the Convention to safeguard children and establish a system of cooperation among contracting states when a child is brought to Australia for the purpose of adoption. It was submitted that to select a later date when a child is brought to Australia for the purpose of adoption is likely to circumvent the purpose of the Convention. Reference was made to Hallen J's comments in Re WS (No 2) where he observed that determining habitual residence by reference to a date later than the date of movement would allow the vagaries of when the Summons was filed to affect the decision (at [214]–[215]), and his favourable reference to Re Adoption Application by KGC and TGC [2007] NZFLR 851 (Adoption Application by KGC and TGC). In that case, the Court found that the applicant's purpose in bringing the children to New Zealand was for the purpose of adoption in New Zealand and the time for assessing habitual residence was the date of movement. 6. The Secretary's submissions referred to facts that supported Ghana continuing to be N's place of habitual residence at the time of his move to Australia on 24 February 2020 and facts that supported N having abandoned his habitual residence in Ghana at that time. The Secretary accepted that it was open to the Court to find that N abandoned Ghana as his place of residence on the date he left that country. 7. The second date referred to by the Secretary was the date on which the Summons was filed. The Secretary submitted that there was a question as to whether the relevant date in determining habitual residence should be a different date if the Court determined that N had not been brought to Australia for the purpose of the adoption application being made in Australia, a factually different circumstance to that in Re WS (No 2). It was submitted that there was less force to the relevant date for the determination of habitual residence being the date on which N left Ghana, having regard to the significant effluxion of time between N's departure from Ghana and the Summons being filed, the intervening COVID-19 pandemic and the attempts to adopt in Ghana, which were referred to in oral submissions as exceptional circumstances in this case. As put by the Secretary in written submissions: "… Where the intention is for adoption, the importance of finding the issue of habitual residence at the time of departure from a left behind state is important to ensure that the laws in relation to adoption of the left behind state are not being circumvented. However, this consideration may become less significant if the intention was not with respect to adoption and the best interests of the child may support a later date to determine the habitual residence of the child." 1. The Secretary submitted that it was clear on the evidence that N was no longer habitually resident in Ghana by the time the Summons was filed in 2022. 2. As Hallen J observed in Re WS (No 2) at 210, the Court must consider whether N "has been… moved, is being or is to be moved… for the purpose of… adoption" (emphasis added) and, at whichever one of those times applies, whether N had or has habitual residence in Ghana. 3. In this case, the evidence demonstrated that, at the time of his move to Australia, N was not brought to Australia for the purpose of an adoption application being made in this country. Adoption had been sought by the Adoptive Parents in Ghana and was an outcome that they clearly wanted. However, at the time of N's movement, there is no evidence to suggest that adoption in Australia had been contemplated nor that N was brought to Australia for that purpose. Nor do I consider that N was brought to Australia for the purpose of adoption in Ghana given that the process commenced in 2015 and N was brought to Australia to live with the Adoptive Parents in February 2020 on a Visitor's Visa which allowed him to remain in the country for six months. It was only later, in 2021, after N's stay in Australia had been extended due to the exceptional circumstances of the COVID-19 pandemic and after NL had discovered that the adoption process in Ghana had stalled, that the intention to adopt N in this jurisdiction crystallised. 4. Thus, I was satisfied that N was not brought to Australia on 24 February 2020 for the purpose of adoption in Australia, unlike the position of WS in Re WS (No 2) and the three children in Adoption Application by KGC and TGC, the latter case being one in which the New Zealand Court found that when the children were first brought to New Zealand it was for the purpose of adoption in that country. 5. In that context, I considered that the factual differences in this case were such that the more relevant date to determine N's habitual residence was later than the date of his movement to Australia from Ghana in February 2020. To my mind, the more appropriate date is later in 2021, when the intention to adopt in Australia was formed, prior to the filing of the Summons. 6. I also considered that such an approach would not be inconsistent with or circumvent the objectives of the Convention in the circumstances of this case. I accepted the Secretary's submission about that matter, as referred to at [117] above. 7. I did not consider this to be a case where the Adoptive Parents had sought to delay the filing of their Summons until such time that N had resided in Australia long enough to enable a finding of habitual residence to be made or that the Adoptive Parents were relying on the duration of time that N had remained in Australia by reason of his visa extensions. The Adoptive Parents had properly sought to engage in an adoption process in Ghana which stalled or ceased, according to Mr Dombo, due to no apparent lack of diligence on the part of the Adoptive Parents and in circumstances where the DCJ's position, as set out in the 29 September 2020 letter, was accepted by the Secretary to have not been based on all the relevant facts and no longer represented its position at the time of the hearing. 8. I considered that N was not a habitual resident in Ghana having regard, in particular, to the following factors: 1. prior to N's arrival in Australia, the role of his birth parents in his life was limited and he had become increasingly distant from them. N's birth parents were unable to look after him. N had not been in contact with his birth mother for years and the care provided by his birth father and other relatives had been unreliable; 2. the Adoptive Parents had played a significant role in N's life for many years in terms of his daily living and care arrangements. Prior to N's arrival in Australia, they had been responsible for N in a financial sense and RM had been in control of N's care arrangements by placing him in the care of extended family members at relevant times. Thus, the persons who were looking out for N's interests and taking care of him were the Adoptive Parents who are habitual residents of Australia, not Ghana; 3. N refused to return to the care of the Reverend and RM's sister, and was the subject of neglect and abuse within their care and the care of others. He did not have stability in his home and school life in Ghana; 4. the Adoptive Parents had a long-standing intention to move N to Australia to live with them, including, if possible, by means of adoption, and they had made an application for an Orphan Relative Visa as early as 2014; 5. prior to his travel to Australia, the Adoptive Parents had applied to adopt N in Ghana. As part of that process, N's birth parents had relinquished their rights to N and had consented to his adoption by the Adoptive Parents, and the Ghana Central Adoption Authority had considered the adoption by the Adoptive Parents to be in N's best interests; 6. when N arrived in Australia on 24 February 2020, the Adoptive Parents (and N's birth parents) considered that his long-term future would be to live with them in Australia even though the nature of N's visa at the time was temporary. They hoped the adoption process in Ghana would enable N to live with them in Australia permanently; 7. when N left Ghana, he considered the Adoptive Parents to be significant family members, having called NL "mummy" for the first time in 2013. N took with him all his valued possessions and only left behind a few toys. N has referred to RM, NL and A as "dad", "mum" and "sister" for some time and considers them to be his family; 8. insofar as there was a settled purpose for N's departure from Ghana, it was linked to the Adoptive Parents in Australia and not to any person in Ghana; 9. N's move from Ghana to Australia on 24 February 2020 was a lawful move. He had a visa permitting him to enter Australia, albeit temporarily, which was initially extended during the COVID-19 pandemic due to travel restrictions. Efforts were made to enable N to stay in Australia which have not changed; and 10. N has been in Australia since February 2020, has attended school since he arrived and has been integrated into Australian life. Since that time, he has had no contact with his birth mother and limited contact with his birth father and one sibling. 1. Even if habitual residence was to be determined as at the date of N's move to Australia, namely, on 24 February 2020, on balance, I was satisfied that N had lost habitual residence in Ghana at that time. While acknowledging the existence of factors that point to the contrary view, in particular, that N was leaving the country he had always lived in and it was expected that he might need to return to that country for a period of time to complete the adoption process in Ghana or due to the temporary nature of his Australian visa, the factors referred to at [125(a)]–[125(j)] above and the authorities that recognise that habitual residence can be lost quickly upon departure from the State of origin persuaded me that there was a settled intention for N to take up residence in Australia with the Adoptive Parents for an appreciable period. 2. For these reasons, I was satisfied that N was not a habitual resident of Ghana such that the Convention and s 107 of the Adoption Act did not apply, and the Court had jurisdiction to consider the application for N's adoption under s 23 of the Adoption Act. Formal requirements under the Adoption Act satisfied 1. There was no dispute that the following requirements under the Adoption Act had not been met and I was satisfied of these matters: 1. s 23: the Court had jurisdiction to make an order as N is a "child" and the Adoptive Parents are a "couple" as defined by the Adoption Act, and N was present and the Adoptive Parents were resident in New South Wales at the time the application was filed; 2. s 24: N was under the age of 18 and was being cared for by the Adoptive Parents at the time the application was filed; 3. s 28: the Adoptive Parents were a couple resident in New South Wales, of good repute, considered fit and proper persons (as confirmed by their character references and the DCJ's previous assessment of them as having the capacity to parent an adopted child), over the age of 21 and had been living together continuously for more than two years; and 4. s 29(b): N had established a relationship of at least two years duration with the Adoptive Parents, who are relatives of N. Consents and parental responsibility 1. The Court must not make an adoption order unless it is satisfied that consent to the adoption has been given by every person whose consent is necessary or otherwise that consent has been, or should be, dispensed with: Adoption Act, s 90(1)(d). 2. Section 29 of the Adoption Act relevantly provides as follows: 29 Adoption by relative The Court must not make an adoption order in favour of a relative of a child unless— (a) specific consent to the adoption of the child by the relative has been given in accordance with this Act by the appropriate person or persons specified in section 53(b) … 1. Section 52 of the Adoption Act provides as follows: 52 Consent of parents and persons who have parental responsibility generally required The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given— (a) in the case of a child who has not been previously adopted by— (i) each parent of the child, and (ii) any person who has parental responsibility for the child, or (b) in the case of a child who has previously been adopted—by each adoptive parent of, or person who has parental responsibility for, the child. 1. Section 53(1) of the Adoption Act provides as follows: 53 Ways in which parent or person who has parental responsibility can give consent (1) For the purposes of this Act, a parent of, or person who has parental responsibility for, a child may consent to the adoption of the child only by– … (b) giving specific consent to the adoption of the child by– … (ii) 2 specified adoptive persons, one of whom is a parent or relative of the child, or… 1. Section 54 of the Adoption Act provides as follows: 54 When consent of parent or person who has parental responsibility not required (1) Consent is not required under section 52 if— (a) the requirement for the consent has been dispensed with by the Court, or Note: See Division 3 of Part 5. (b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or (c) the child gives sole consent to his or her adoption in accordance with subsection (2), or (d) the child is 18 or more years of age. (2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years. (3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless— (a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or (b) the Court dispenses with the giving of notice. (4) The regulations may prescribe the particulars to be contained in a notice under this section. 1. N had signed an instrument of Sole Consent giving his consent to the making of an adoption order in respect of himself in favour of the Adoptive Parents. He was more than 12 years old on 29 August 2022 when he signed the Sole Consent and, in doing so, he certified that he had received the mandatory written information on 12 August 2022 and had undergone counselling on 19 August 2022. Ms Bonds had certified that N understood the effect of signing the instrument and was of sufficient maturity to understand the effect of giving consent. Thus, the requirements of ss 54(2), 55(1), 61 and 63 of the Adoption Act were complied with in relation to N giving his consent to the adoption. 2. The issue raised by the Secretary was whether Sole Consent by N was sufficient for the purposes of the Adoption Act or whether Specific Consents by N's birth parents, or the person with parental responsibility for N, were also required having regard to the terms of ss 29(a) and 53(1)(b)(i) of the Adoption Act, in which case there were questions as to who held parental responsibility for N and as to the form of the Specific Consents given by N's birth parents. 3. The Secretary's submissions referred to differing views as to whether the requirements of ss 29(a) and 53 of the Adoption Act could be overcome by the sole consent of a child over 12 years old under s 54(2) of the Adoption Act. It was submitted that compliance with s 54(2) of the Adoption Act may not absolve the need for compliance with ss 29(a) and 53 of the Adoption Act on the basis that s 54 refers only to s 52, not s 53, and relative adoptions are a special category such that the provisions should be construed in that light and s 54(2) is a general provision meaning it should not operate to overcome the specific requirements set out in ss 29(a) and 53(1)(b) in accordance with general rules of statutory interpretation. 4. The Secretary's submissions also referred to the alternative argument, namely, that s 54(2) of the Adoption Act, if complied with, dispenses with the specific consent requirements under ss 29 and 53 of the Adoption Act. As was submitted, the use of the term "sole consent" in s 54(2) indicates that the only consent needed is that of the child, notwithstanding the other provisions of the Adoption Act which require specific consent, so long as a child is 12 or more years of age and has been cared for by the proposed adoptive parent/s for at least two years, consistent with the view expressed by Hallen J in Re WS (No 3) [2017] NSWSC 1160 at [345]. 5. It was unnecessary for me to determine this issue of statutory construction as, in addition to N's Sole Consent, there was evidence that Specific Consents had been executed by each of N's birth parents and by Mr Dombo, which I was satisfied conformed with the requirements of the Adoption Act. 6. N's birth parents had both executed instruments of Specific Consent for the adoption of N that were witnessed by Mr Dombo. Prior to signing the Specific Consent forms, N's birth parents each received a copy of the instrument of Specific Consent and mandatory written information, and were counselled by Ms Bonds in accordance with s 63 of the Adoption Act. Ms Bonds signed a statement acknowledging that the requirements of s 61(3) of the Adoption Act had been complied with. The Specific Consent forms signed by N's birth parents conformed with the requirements of cl 80 of the Adoption Regulation 2015 (NSW) (NSW Adoption Regulation). 7. Mr Dombo had also executed an instrument of Specific Consent for N's adoption in favour of the Adoptive Parents, doing so in his capacity as the "person with parental responsibility" or the "bearer of legal rights of the child", at the Australian High Commission Office which was witnessed in the presence of an Authorised Consular Officer. Prior to Mr Dombo signing the Specific Consent form, he received a copy of the instrument of consent and the mandatory written information on 23 November 2022 and was counselled by Ms Bonds on 29 March 2023 in accordance with s 63 of the Adoption Act. Ms Bonds signed an instrument acknowledging that the requirements of s 61(3) of the Adoption Act had been complied with. The Specific Consent form executed by Mr Dombo also conformed with the requirements of s 80 of the NSW Adoption Regulation. 8. Based on the material before the Court, I was satisfied that Mr Dombo, in his capacity as Head of the Central Adoption Authority in Ghana, could witness the consents by N's birth parents as he met the criteria set out in r 81(1)(c)(iii) of the NSW Adoption Regulation, being a person authorised by the law of Ghana to attest to a consent to the adoption of a child, and that he was also an appropriate person to provide Specific Consent to N's adoption. 9. According to advice received by Freedman & Gopalan Solicitors from Korna Bonney, Managing Partner at Lex Emporium (a law firm in Ghana), Mr Dombo, as the Head of the Central Adoption Authority in Ghana, was the best person to witness the adoption documents in respect of N. Mr Bonney's advice records that: the Children's Act, 1998 (Act 560) and the Ghana Act 937 are the main laws that govern adoption in Ghana; s 86P of the Ghana Act 937 established the office of the Central Adoption Authority under the Ministry of Gender, Children and Social Protection; and the Central Adoption Authority is in charge of all adoptions in Ghana under s 86Q(a) of the Ghana Act 937. 10. As set out at [63]–[65] above, Mr Dombo also gave affidavit evidence that he is a person authorised by the law of Ghana to attest to a consent to the adoption of a child and that, following Ms Senyo's retirement, he assumed her duties regarding N. 11. At the hearing, Counsel for the Secretary referred the Court to provisions of the Ghana Act 937 relating to the establishment, objects and functions of the Central Adoption Authority in Ghana, in particular, ss 86P, 86Q, 86R and 86Y of the Ghana Act 937. The Secretary submitted, and I accepted, that those provisions, together with the Relinquishment Order made on 15 January 2020 and Mr Dombo's evidence, supported a finding that Mr Dombo, in his professional capacity, was empowered by Ghanian law to witness the Specific Consents and to exercise parental responsibility with respect to N. 12. Accordingly, I was satisfied that the consents to the adoption of N had been given by the persons referred to in s 53 of the Adoption Act in accordance with s 29(a) of the Adoption Act and that the consents complied with the requirements of the Adoption Act. Other formalities 1. As to the other formalities under the Adoption Act, the evidence demonstrated that: 1. ss 59 and 88(1) of the Adoption Act were satisfied as the mandatory written information in relation to the adoption and 14 days' notice of the application had been given to N's birth parents and to Mr Dombo; and 2. s 91(1) of the Adoption Act was satisfied as the reports concerning the proposed adoption were prepared by an authorised person, namely, Ms Wyles, an authorised adoption assessor. Best interests of child 1. The Court cannot make an order for the adoption of N unless it is satisfied of the matters set out in s 90 of the Adoption Act which provides as follows: 90 Court to be satisfied as to certain matters (1) The Court must not make an adoption order in relation to a child unless the Court is satisfied— (a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and … (g) if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and (h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. … (3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. 1. Section 8 of the Adoption Act sets out the principles to be applied when making decisions about the adoption of a child and provides, amongst other things, that the paramount consideration is the "best interests of the child". Section 8(2) of the Adoption Act sets out the matters to which regard should be had when determining the best interests of the child, which relevantly include: any wishes expressed by the child; the child's age, maturity, level of understanding, gender, background and family relationships; the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity; any wishes expressed by either or both of the parents of the child; the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives); the attitude of each proposed adoptive parent to the child and the responsibilities of parenthood; the nature of the relationship of the child with each proposed adoptive parent; the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child; the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour; and the alternatives to the making of an adoption order and the likely effect on the child in both the short-term and long-term in respect of changes in the child's circumstances caused by an adoption. 2. N had expressed his wish to be adopted by the Adoptive Parents by signing the instrument of Sole Consent. He had also demonstrated an understanding of the changes that adoption would instigate in respect of his legal relationships with his birth parents and siblings, and he expressed positivity at the prospect of RM and NL becoming his adoptive parents, as recorded in the reports from Ms Bonds and Ms Wyles. As reported by Ms Wyles, N was of an age and maturity to appropriately understand the legal, emotional and psychological effects of an intrafamily adoption. 3. N's physical, emotional and educational needs were being met by the Adoptive Parents. N was attending school, was in good health and was meeting all of his developmental milestones. Ms Wyles' s 91 reports and the affidavits of the Adoptive Parents' character referees very clearly established that the relationship between the Adoptive Parents and N and the environment in which N was being raised was positive from N's perspective. N had developed a close and loving relationship with the Adoptive Parents, and called RM "dad' and NL "mum" despite knowing they are his grandparents. N had expressed excitement at the prospect of being adopted and living with the Adoptive Parents "always", and had expressed fear at the prospect of returning to Ghana as a result of his childhood experiences. N also considered A to be his sister and appreciated his relationship with her. This feeling was reciprocated by A towards N and the pair had a sibling relationship. 4. In contrast, while living in Ghana, N suffered neglect, malnutrition and injuries associated with physical abuse from family members and staff members at the school he attended, and he was the subject of theft from people who were responsible for his care. 5. The Adoptive Parents were committed to N and considered him to be a valued member of their family. The evidence demonstrated their long-standing care and commitment to N's welfare, having taken on much of the responsibility for his upbringing since he was one year old. The assessment of the Adoptive Parents conducted by the DCJ in 2005 and 2006 identified that they had excellent capacity to parent an adopted child, extensive experience with children and a strong and loving marriage which would offer a child a good foundation. 6. RM was born in Ghana, as was N's adoptive sister, A. Thus, I was satisfied that N's cultural identity and language in Ghana would be maintained. The Adoptive Parents were also supportive of N attending church as he did when he lived in Ghana and had facilitated that, although when he arrived in Australia they observed N's dwindling lack of interest. 7. N's birth parents had made a decision to give up N's care; neither of them were able to care for him or meet his needs. In this case, it was clear that there was no possibility of restoration to N's birth parents. There was also no suitable family member or friend to care for N in Ghana. 8. The birth parents had both expressed that they did not wish to have contact with N, although they knew that if they ever wanted information, they could contact the Adoptive Parents. RM and NL had been facilitating some contact between N and his birth father and biological sibling in Ghana. N's relationship with his birth parents was not close. N had no other close relationships with relatives in Ghana. 9. As to the alternatives to an adoption order, it was submitted, and I accepted, that there was a level of uncertainty inherent in maintaining the status quo and that making a parental responsibility or guardianship order was unfavourable when compared to the certainty and permanence that an adoption order would provide, which is important to N and his future as it would enable him to be raised in a loving, caring and legally recognised family in Australia. I was also satisfied that this was a genuine adoption application and not one where the primary purpose was simply to obtain a visa to enable N to remain in Australia with the Adoptive Parents. 10. The Court is generally reluctant to make adoption orders in favour of a relative where the natural parents of the child are alive and that exceptional circumstance must be established: Adoption of R [2017] NSWSC 270 at [39] and the cases there cited. 11. However, having considered the submissions and the evidence in this case, and for the reasons set out above, I was satisfied that exceptional circumstances existed and the making of an adoption order in favour of the Adoptive Parents would be in the best interests of N and would be preferable than any other lawful action that could be taken in relation to his care. Change of name 1. The Adoptive Parents also sought an order that the Court approve the name "L-M" as N's surname and "N" as his given names. I was satisfied that such an order should be made and that it would be in N's best interest to change his name in the manner proposed. 2. The changes proposed to N's surname reflected the combined surnames of RM and NL, consistent with the name of N's adoptive sister, A. That change should further reinforce his connections to the Adoptive Parents and promote N's relationship with them and A. 3. As to N's given names, the change was proposed so that N would legally be known by the name he has been known by from a young age and reflected his wishes that he would like that name to be recorded on his birth certificate, together with the middle name that he shares with RM. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2023