New South Wales Supreme Court CITATION : APPLICATION OF DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES [2004] NSWSC 44 HEARING DATE(S) : 10/02/2004 JUDGMENT DATE : 10 February 2004 JURISDICTION: Equity Adoption List JUDGMENT OF : Bryson J at 1 DECISION : Orders varying birth dates in adoption orders. CATCHWORDS : ADOPTION - adoption order - variation of birth date PRACTICE AND PROCEDURE - setting aside or varying judgment or order - Pt.40 r.9(4) - adoption orders in February 1995 set out the birth dates for 2 children as shown in records from Colombia - children were foundlings without known family history or birth records and birth dates were assigned arbitrarily by Colombian authorities when the children came into care at ages of about 5 and 3 - bone age x-rays supported medical opinions that the children were about 2 years older than recorded birth dates indicated - adoption orders were varied pursuant to Pt.40 r.9(4). LEGISLATION CITED : Adoption Act 2000 Adoption of Children Act 1965 PARTIES : Director General of the Department of Community Services FILE NUMBER(S) : SC 80271/1994 COUNSEL : Mark Anderson - Plaintiff SOLICITORS : I V Knight Crown Solicitor IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTION LIST BRYSON J. TUESDAY 10 FEBRUARY 2004 80271/94 APPLICATION OF DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES. JUDGMENT 1 HIS HONOUR: Restrictions exist on the publication of any matter reasonably likely to enable the names of persons concerned in an adoption application to be identified. Section 180 of the Adoption Act 2000 imposes criminal penalties on such publication. Subsection 180(2) deals with publication with the authority of the Court. I have authorised the publication of these reasons because the grounds of my decision on the powers of the Court to vary an adoption order may be useful in the future. I have omitted or made indefinite some material which might enable the persons concerned to be identified. It is still possible that they might be identified by some further inquiries, but I point out that I have not authorised any further inquiry, and I have not authorised publication of anything other than the terms of these reasons themselves. 2 The Director General of the Department of Community Services ("the Department") applied to the Court by Summons on 23 January 1995 for adoption orders under the Adoption of Children Act 1965 relating to two girls. The adopting parents were a married couple who resided in New South Wales; with the assistance of the Department, they made arrangements to adopt the two children who then lived in foster care in Colombia, under the supervision of the Colombian Institute of Family Welfare. 3 Information available from Colombia, including a record of judicial proceedings there, is this effect. When the children were very young, at ages which were not known but appeared to have been about five and three years, they were taken into care by a woman, a stranger to them, whom they approached in a restaurant and asked for food. They were in the company of a man whose identity was and is unknown. The woman whom they approached cared for them for more than a year, and then notified the Colombian Institute of Family Welfare, which arranged for them to be taken into foster care. The Institute attempted to establish information about them, but could not find any information about their biological family; their photographs were advertised but no one came forward to give information about their family or other relationships. Estimates of their dates of birth and ages were made, probably by medical advisors in Colombia, and dates of birth were assigned to them, rather arbitrarily, for inclusion in records. They were given a surname and cared for in an orphanage; it has always been assumed that they are sisters. The Institute included them in an adoption program, and they were allocated for adoption to their Australian adopting parents in February 1993. After spending about six weeks in Colombia, the adopting parents brought the girls back to Australia. At first the adoption placement seemed successful and adoption orders were made by this Court on 9 February 1995. 4 In 1995 it was, and it seems that it has always been the practice of this Court to state the birth date of an adopted child among the particulars of the child in an adoption order. The age of the child is relevant for several purposes relating to adoptions, and is also a significant part of the particulars identifying the child; no doubt these considerations underlie the Court's practice. The statement of the birth date of a child in an adoption order interacts with statutory and administrative procedures relating to the registration of births, in which, in 1995 (as at all times) such statements were accepted automatically and incorporated in birth registration records. 5 The evidence and information before this Court when the adoption orders were made fully supported treating the birth dates shown in the Colombian records as the birth dates of the children. It was clear enough that there had been an arbitrary element in adopting those birth dates, but records from Colombia showed those dates. They appeared in an adoption order made in March 1993 by a Family Court in Colombia. The birth dates appeared in registrations of births in a Notarial Civil Register of Births maintained in Colombia. Nothing was put before this Court in 1995 to suggest that it was not appropriate to adopt the birth dates. There was no reason to think that the birth dates were a matter of doubt or were a difficulty, and there was no reason for the Court to do otherwise than to adopt the birth dates put forward. 6 Although the adoption placement at first appeared successful, it later broke down and the children came to be under the control of the Department under orders of the Children's Court, committing parental responsibilities to the Minister and the parents (in the case of the elder child) and to the Minister (in the case of the younger child). In various ways the children expressed feelings and beliefs that the ages attributed to them were incorrect. The Department arranged for medical examinations to be conducted with a view to ascertaining their true ages. In the case of the elder child, a bone age x-ray was performed at the John Hunter Children's Hospital in December 2001, and a medical practitioner with paediatric qualifications employed in the Department of Paediatric Endochrinology expressed this view: "The bone age x-ray taken of her left wrist estimated her to be 16 years. (Please note that this would make her 2 years older than expected according to her previously documented birth date of ...)" In April 2002 a dental surgeon expressed the view, after examining the elder child and conducting an analysis of her lateral cephalometric x-ray, that the x-ray indicated stage V growth (second last stage) which indicated a presumed chronological age of sixteen to seventeen years. The dental surgeon reported: "Please note that the most accurate way of age determination would be by hand/wrist x-ray." 7 The younger child was also examined at the John Hunter Children's Hospital in December 2001 and a medical practitioner there gave this opinion: "For some time (name) has been concerned that her true age is older than the birth date she was given when adopted. A bone age x-ray was taken of her wrist which estimated her age to be 15 years." 8 The opinions expressed on the basis of the bone age x-rays are supported by views expressed by the children themselves, and by departmental officers who have had contact with them, that their actual ages are at least two years more than those shown in the adoption orders, and now in their New South Wales birth certificates. 9 In my finding there is no room for doubt that, as the Director General contends, the children are about two years older than their birth certificates indicate. Although the exact birth dates are unknown and dates were allocated by authorities in Colombia on what must have been an arbitrary basis, their birth dates would be stated with a much higher degree of accuracy, although not with complete accuracy, as two years earlier than as at present shown. 10 The Director General's application has been considered by me in Private Chambers without a hearing. The adoption orders were signed by a Judge of this Court on 9 February 1995, and entered in the Registry and sealed on 14 February 1995. For most purposes they are final and beyond the powers of this Court to revoke or alter. I asked the Crown Solicitor, who represented the Director General in the application, for submissions on the powers of this Court to change the dates of birth of the adopted children appearing in the adoption orders, and the Crown Solicitor obtained and furnished me with written submissions by Mr. Mark Anderson of Counsel. Counsel made a careful review of the limited powers of this Court to set aside or vary an order which has been passed and entered. Counsel referred extensively to Part.20 r.10 of the Supreme Court Rules 1970, commonly called the Slip Rule, and much case law in which this and similar Rules of Court, and inherent powers of Courts to set aside or vary orders, have been considered. 11 Part.20, r.10(1) provides: Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. What happened in this case was clearly not a clerical mistake. With the information available now, it is clear that there was an error, but in my opinion it cannot be described as "an error arising from an accidental slip or omission." The only material before the Court about the children's birth dates was clear and uncontentious and appeared to be reliable. There can in my view be no doubt that the Judge who made the orders fully and deliberately intended to adopt the dates which appear in the orders. 12 Counsel also referred to Part.40, r.9 of the Supreme Court Rules 1970. This rule relates to setting aside or varying a judgment or order. Subrules (1), (2) and (3) set out a number of cases where setting aside or varying a judgment or order is authorised; none of these applies to the present case. Subrules (4) and (5) are in these terms: (4) In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief. (5) Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order. 13 Each adoption order determined a claim for relief. I have to consider whether the reference to the birth dates in the adoption orders determined any question (whether of fact or law or both) arising on any claim for relief. In subrule (4) the exception, which I have set out with added emphasis, must be given a reading in which it is an exception and no more, and a reading in which it does not cover all the grounds covered by the conferral of power in the earlier part of subrule (4). It cannot be the correct reading of subrule (4) that the exception blots out the conferral of power which went before. It could be said that the age of a child is a question of fact arising on a claim for an adoption order, but if the subrule was read in that way it is hard to see any room in which it could operate. In my opinion the exception is not directed to matters (such as the birth dates) which are incidental or ancillary to the central provision which the order makes. 14 Obviously enough, the birth date of each child was not central to the Court's decision to make an adoption order. It was relevant in the sense that the Court must know the ages of the child and the adopting parents, and the adoption order must identify the persons with whom it deals. In the present case, there was no dispute about the ages of the children. In my view it should not be held that, within the meaning of subrule (4), the statement of birth date in each order determined any question arising on any claim for relief. The birth dates were not in question; they were included essentially for the purpose of identification, not for the purpose of deciding or disposing of any issue. With hindsight it is known that the dates were wrong, and there is a strong case for the exercise of any available discretionary power in favour of varying the orders, so as to produce accuracy and to minimise adverse impacts on the children from attributing incorrect ages to them. In my view power is available under Part.40, r.9(4) to vary the adoption orders in respect of the dates given for the births of the children, and I propose to make orders varying those dates by substituting dates two years earlier than those shown. 15 Counsel referred to various other possible bases of action on which I do not think it is necessary to proceed. 16 My orders are: (1) Order pursuant to Part.40, r.9(4) of the Supreme Court Rules 1970 that the adoption order relating to (name) made on 9 February 1995 and entered on 14 February 1995 in these proceedings be varied by deleting the figures 1987 in the statement of the date of birth of the child and inserting instead the figures 1985. (2) Order pursuant to Part.40, r.9(4) of the Supreme Court Rules 1970 that the adoption order relating to (name) made on 9 February 1995 and entered on 14 February 1995 in these proceedings be varied by deleting the figures 1989 in the statement of the date of birth of the child and inserting instead the figures 1987. ********** Last Modified: 04/08/2004 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.