New South Wales Supreme Court CITATION : Re DYK & The Adoption Act 2000 [2005] NSWSC 1045 JUDGMENT DATE : 17 October 2005 JUDGMENT OF : Brereton J CATCHWORDS : FAMILY LAW & CHILD WELFARE - Child welfare other than under Family Law Act 1975 - adoption - application for consent dispense orders with respect to Korean natural parents and Korean guardian of child - whether consent of natural parents to be dispensed with - "reasonable inquiry" for the purpose of deciding whether to make consent dispense order - whether consent dispense order with respect to Korean guardian necessary - application of Immigration (Guardianship of Children) Act 1976 (Cth) to child who enters Australia with intending adoptive parent Adoption Act 2000 LEGISLATION CITED : Immigration (Guardianship of Children) Act 1946 (Cth) Re H & The Adoption Act [2004] NSWSC 1242 Re S & The Adoption Act 2000 [2005] NSWSC 393 CASES CITED : Re K & The Adoption Act [2005] NSWSC 858 Re KN & The Adoption Act 2000 [2005] NSWSC 896 PARTIES : Re DYK & The Adoption Act 2000 FILE NUMBER(S) : SC 80085 of 2005 LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST BRERETON J Monday 17 October 2005 80085/05 DYK & The Adoption Act 2000 JUDGMENT 1 HIS HONOUR: DYK was born in Korea. He is now two years of age and has been in the care of the applicants and in Australia for 18 months. With the consent of the Director General of the Department of Community Services ("DOCS"), by his delegate, the applicants seek an adoption order in their favour, the approval of the child's name, and orders dispensing with the consents of the child's natural parents and of the child's guardian Kim Do Young, who is the Executive Director of the Eastern Social Welfare Society ("ESWS"), an Korean agency approved by the Korean government to conduct intercountry adoptions, and also dispensing with the giving of notice of the application to the parents and Kim Do Young. 2 Subject to the making of the orders dispensing with consents and notice as sought, all necessary conditions for the making of an adoption order have been satisfied, and it is appropriate that such an order be made. But issues relating to the consents have called for more thorough consideration. Relevantly, the history is as follows. Background 3 On 22 July 2002, the applicants applied to the Department to adopt a child from overseas, preferably Korea. A confidential adoption assessment approving them as suitable for that purpose was sent to ESWS,. 4 The child was born on 7 September 2003. His birth father was a 21 year old university student whose surname only is known, and his birth mother a 20 year old college student whose surname only is known. The birth mother referred the child to ESWS in Seoul, for adoption, on 9 September 2003, when he was two days old. He was placed with foster parents from the age of a little over two weeks, until he was ultimately placed with the applicants at the age of about 18 months. The birth mother apparently visited the child while he was with his foster family. 5 A certificate dated 26 September 2003 records that Kim Do Young, President and CEO of ESWS, was named as guardian of the child. 6 An entry in the Family Census Register dated 16 October 2003 records the child as having no father and no mother. 7 A certificate of birth issued by ESWS and dated 6 November 2003 certifies that the child was born on 7 September 2003 and shows no father or mother. 8 On 6 November 2003, Kim Do Young, describing himself as "legal guardian" of the child, signed a "Statement of consent to overseas adoption", irrevocably consenting to the child's immigration to Australia and his adoption by suitable parents, and authorising DOCS to make any and all decisions and to take any and all legal steps necessary to accompany his immigration to Australia and adoption, in the following terms: By virtue of my right as guardian of [the child], a minor child and having sole custody of the said, I, Kim Do Young, hereby irrevocably consent to his/her immigration to the Australia and his/her adoption by suitable parents. I hereby authorise the Department of Community Services to make any and all decisions and to take any and all legal steps necessary to accomplish his/her immigration to the Australia and adoption, including the right to consent to medical and surgical treatment, the right to consent to adoption and the right to release the custody of this child, and to transfer the right to consent to the adoption of this child to any agency authorised to place child for adoption. I fully understand that I am hereby releasing irrevocably the custody of this child and I understand also that once the legal adoption has been completed, the adoptive parents will assume all the legal responsibilities for the child and will acquire all the legal rights incident to the relationship of parent and child. In consideration of this assumption of my legal obligations by the adoptive parents, I hereby waive all the rights which I now have over this child. 9 On 11 November 2003, a DOCS officer interviewed the applicants who signed various documents indicating their desire to adopt the child, which were then returned to ESWS. 10 The applicants left Australia and travelled to Korea on 28 March 2004. There they contacted ESWS, and met the child at the orphanage on 29 March 2004. On 5 April 2004 he was placed in their care and they received the relevant Korean papers pertaining to his adoption. On the same day they left Korea with the child, arriving back in Australia on 6 April 2004. 11 Since then, the child has resided with the applicants in a suburb of Sydney. The placement has, by all accounts, been very successful. 12 The applicants did not meet the birth mother in Korea, but say that they are "very open" about having contact with her, and want her to feel reassured about her son. The welfare report says that they plan to send a letter and photographs for her to ESWS, would value any birth family contact, and will send ongoing information to Korea for her to access. They are said to be aware "of the services available through" ESWS. Name 13 The applicants propose that the child have their surname, and that his forenames be his two (existing) Korean forenames, together with two Australian forenames. They feel it important that he retain his Korean name. The two Australian forenames which they wish to add include one which they have liked for some years, and the forename of the male applicant, which has also been the name of the first born son in the male applicant's family for several generations so as to be a family tradition. 14 While Adoption Act 2000, s 101(5) prohibits a change in the given names of a child, that is so only where there is evidence of acceptance by the child of a particular name as part of the child's identity [Re H & The Adoption Act [2004] NSWSC 1242; Re S & The Adoption Act 2000 [2005] NSWSC 393]. In any event, I would not construe s 101(5) as prohibiting the addition of a third and fourth given name, following the existing given names, which remain unchanged. The reasons advanced by the applicants for the additional names are sound, given the mixed cultural heritage of the child. 15 I will approve the proposed name. Dispensing with consent and notice – the birth parents 16 Orders dispensing with the consent of the child's natural parents (called a "consent dispense order") and with giving of notice of the application to them are authorised under Adoption Act, s 67(1)(a) and s 72(2)(a). The court may make a "consent dispense order" if satisfied that the person whose consent is otherwise required cannot after reasonable inquiry be found or identified, but not unless it is satisfied that to do so is in the best interests of the child. 17 As White J has explained in Re K & The Adoption Act [2005] NSWSC 858, what amounts to "reasonable inquiry" is to be evaluated from the perspective both of the applicants and of the person whose consent is otherwise required. 18 Neither the identities of the child's natural parents (save for surnames), nor their whereabouts, are presently known to the applicants or the Director General. 19 The capacity of the applicants to make any further inquiry in Korea to identify the child's natural parents is limited. There is no evidence of the identity of the birth father other than a surname, no hint of his having ever had anything to do with the child, no likelihood that any inquiry of which the applicants are capable would find him, and scant likelihood that he would wish to be contacted. While it is at least possible that ESWS may have contact details for the birth mother, it is not clear that ESWS would release such information. Moreover, the evidence shows that the birth mother, thinking that she could not provide a proper environment for the baby, and that it was most desirable for him to grow up well in an appropriate adoptive home, relinquished him to ESWS for adoption. While that is not a "consent" for the purposes of the Adoption Act, it is highly relevant in considering whether any further inquiries would be "reasonable". The view that they would not is reinforced by the circumstance that, from the perspective of the child's parents, the anonymity which has been conferred on them by the measures taken in Korea in respect of the birth documentation would be infringed. 20 I am satisfied that it would not be reasonable to require further inquiry as to the identity and whereabouts of the natural parents. Accordingly, I am satisfied that the natural parents cannot after reasonable enquiry be found. I am also satisfied that it is in the interests of the child that a consent dispense order in respect of the parents be made. 21 For the same reasons, I am satisfied that notice should not be required to be given to the birth parents. Dispensing with consent – the guardian 22 The more difficult question is the consent of any guardian of the child. 23 In Re S, Gzell J held that the Immigration (Guardianship of Children) Act 1946 (Cth) meant that orders dispensing with the consent of the CEO of ESWS as guardian were unnecessary, as s 6 of the Act provided that the Minister administering that Act became the guardian of every "non-citizen child" who arrives in Australia to the exclusion of any former guardian. That section is in the following terms: The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens. 24 In Re K, White J followed Gzell J's decision in holding that the effect of that section was that the Korean guardian's consent was not required under Adoption Act, s 52, as he was no longer the guardian of the child, having been replaced by the Commonwealth Minister [Re K & The Adoption Act 2000 [2005] NSWSC 858, [15]]. 25 In Re KN & The Adoption Act 2000 [2005] NSWSC 896, Campbell J in considering an adoption from Thailand was not satisfied that the Chairman of the Child Adoption Board in Thailand had ever become guardian of the child so as to make his consent necessary, but had he been appointed guardian would have followed White J's decision in Re K and held that an order dispensing with the consent of that person was unnecessary, agreeing with White J's reasons for that conclusion [Re KN & The Adoption Act 2000 [2005] NSWSC 896 [10]]. 26 Initially, I had reservations about this line of authority, because it appeared to overlook the definition of "non-citizen child" contained in s 4AAA of the Immigration (Guardianship of Children) Act, which is as follows: (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. (3) Subsection (1) does not apply if: (a) the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult ); and (b) a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and (c) the adult intends to reside with the child in a declared State or Territory. 27 Section 4 of the Immigration (Guardianship of Children) Act defines "intending adoptive parent", in relation to a child, as "a person who intends to adopt the child under the laws in force in a declared state or territory, or secure the recognition of an adoption of the child by the person under the laws of a foreign country". "Non-citizen child" is defined to mean a person who is a non-citizen child under subsection 4AAA(1) or (4). Section 4AAA(4) is not relevant. "Declared State or Territory" means a State or Territory in respect of which a declaration under section 4AAB is in force. If New South Wales was a declared state, then the child, having entered Australia in the charge of, and for the purposes of living in Australia under the care of, intending adoptive parents, would not be a "non-citizen child", and Immigration (Guardianship of Children) Act, s 6, would not apply. 28 However, further research has established that no declaration has ever been made under Immigration (Guardianship of Children) Act, s 4AAB. Accordingly, my initial reservations were unfounded. 29 It follows that orders dispensing with the consent of the CEO of ESWS as guardian are unnecessary, as by operation of s 6 of the Immigration (Guardianship of Children) Act, the Commonwealth Minister became the guardian of the child upon his arrival in Australia, to the exclusion of any former guardian. 30 Adoption Act, s 77, entitled "Guardianship of certain non-citizen children awaiting adoption", provides as follows:- (1) This section applies to a non-citizen child who is subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth on entry to Australia and in relation to whom an adoption order has not been made under any law. (2) The Director-General is the guardian of a child to whom this section applies and section 75 is, to the extent necessary, to apply to that child as if he or she were born in a State of the Commonwealth for so long as New South Wales is the normal place of residence of the child. Note. The Minister for Immigration of the Commonwealth is the guardian of a child arriving in Australia and who is subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth until an adoption order is made. The functions of guardianship are presently delegated to the Director-General under section 5 of that Act. 31 The Acting Director of Adoption and Permanent Care Services of DOCS, as delegate of the Commonwealth Minister, has signed a consent to the making of an adoption order, and a direction that the provisions of the Immigration (Guardianship of Children) Act 1946 (Cth) cease to apply to the child with effect from the date of an adoption order, on 29 August 2005. That is the only guardian's consent which is required. Release of certified copy order for ESWS 32 For the reasons explained by Campbell J in Re KN [at [19-26]], in the exercise of the Court's inherent jurisdiction and pursuant to Adoption Act, s 143, it is appropriate to make an order releasing a certified copy of the orders to DOCS for transmission to ESWS. Orders 33 Accordingly, I will make orders: 1 for adoption of the child in favour of the applicants, 2 for the approval of the child's name, 3 dispensing with the consents of the child's natural parents, 4 dispensing with the giving of notice of the application to the natural parents, and 5 releasing a certified copy of the orders to DOCS for transmission to ESWS. 34 No order dispensing with the consent of Kim Do Young, nor dispensing with the giving of notice of the application to him, is necessary. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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