New South Wales Supreme Court CITATION : Claudelle Sharon Clare Miles v Hillman John Miles (aka) Johan Miles Abdullah & 3 ors; In the Estate of Wayde Stanley Miles [2006] NSWSC 918 HEARING DATE(S) : 29/08/06 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 08/29/2006 DECISION : Adoption orders of Sessions Court of Kelang held valid in New South Wales. CATCHWORDS : PRIVATE INTERNATIONAL LAW – FAMILY LAW – Adoption – recognition of foreign adoption – non-convention country – not a prescribed overseas jurisdiction – whether presumption that Adoption Act s 116(1) applies rebutted – Adoption Act ss 116, 117. PROCEDURE – service – service outside jurisdiction – leave to proceed. (NSW) Adoption Act 2000, ss 116, 117 (NSW) Family Provision Act 1982 LEGISLATION CITED : (NSW) Supreme Court Rules 1970, Pt 73 r 15 (NSW) Uniform Civil Procedure Rules 2005, r 11.4 (NSW) Wills Probate and Administration Act 1898, s 61B 1104/06 Claudelle Sharon Clare Miles (plaintiff) Hillman John Miles (aka Johan Miles Abdullah) (first defendant) Carole Ann Mitchell (second defendant) PARTIES : Noreene Mary Doris Alexander (third defendant) David Alexander (fourth defendant) 1134/06 Noreene Mary Doris Alexander (plaintiff) Claudelle Sharon Clare Miles (defendant) FILE NUMBER(S) : SC 1004/06; 1134/06 COUNSEL : 1004/06 Ms S Thode (plaintiff) 1004/06 Eakin McCaffery Cox (plaintiff) Taylor &Scott (second defendant) Pigott Stinson Ratner Thom (third defendant) SOLICITORS : Pigott Stinson Ratner Thom (fourth defendant) 1134/06 Pigott Stinson Ratner Thom (plaintiff) Eakin McCaffery Cox (defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Tuesday 29 August 2006 1004/06 Claudelle Sharon Clare Miles v Hillman John Miles (aka Johan Miles Abdullah) & 3 ors; in the Estate of Wayde Stanley Miles 1134/06 Noreene Mary Doris Alexander v Claudelle Sharon Clare Miles JUDGMENT (ex tempore) 1 HIS HONOUR: By summons filed on 3 January 2006 and amended on 11 April 2006, the plaintiff Claudelle Sharon Clare Miles, both in her capacity as administrator of the estate of her late brother Wayde Stanley Miles and in her personal capacity, claims declarations to the effect that adoptions of Wayde and herself by orders of the Sessions Court at Kelang, Malaysia made on 5 July 1979 are valid according to the law of New South Wales; that Wayde's estate is held upon statutory trust for her pursuant to Wills Probate and Administration Act 1898 (NSW), s 61B; and alternatively, provision for herself pursuant to Family Provision Act 1982 (NSW), out of Wayde's estate. 2 Wayde died intestate, domiciled in New South Wales, on 23 July 2004. The first defendant, Hillman John Miles, also known as Johan Miles Abdullah, is the natural father of Claudelle and Wayde; unless the adoption order in respect of Wayde is valid, he would be entitled to Wayde's estate on intestacy as Wayde's sole surviving parent. The second defendant, Carol Ann Mitchell, claims to be the de facto spouse of Wayde; Claudelle disputes her claim. The third defendant, Noreene Alexander, is the aunt of Wayde and Claudelle; she is 62 years of age and has lived with them since about 1982. Since about 1990 she has been a co-owner with them of a home unit in the eastern suburbs of Sydney. In separate proceedings, No 1134/06, she is the plaintiff for provision out of Wayde's estate. The fourth defendant, David Alexander, is Wayde and Claudelle's uncle, and is also potentially an eligible person under category (d) in relation to Wayde's estate for the purposes of the Family Provision Act. 3 On 26 August 2006, the matter was in the Expedition List, when there were appearances on behalf of the second, third and fourth defendants, as well as on behalf of the plaintiff. By agreement of those parties it was ordered that the claims for relief in paragraphs 1 and 2 of the amended summons - which are the claims for declarations of validity of the adoptions of Wayde and Claudelle - be heard separately and before the other issues in the proceedings. That order was made because those claims raise discrete issues, apparently capable of prompt resolution, which will determine who is beneficially entitled to Wayde's estate on intestacy, and thus provide the starting point for any family provision claims. 4 The first defendant, Hillman John Miles, married Wayde and Claudelle's mother, Laura Agnes Miles (nee Alexander) in Malaysia on 30 June 1962. Claudelle was born to them on 11 August 1963, and Wayde on 31 October 1964. On 29 March 1964, Mr Miles converted to the Islamic faith and adopted the name Johan Miles Abdullah by which he is now known. 5 A decree nisi for dissolution of the marriage of Mr Miles and Laura Miles was pronounced in the High Court of Malaysia on 23 March 1970 and became absolute on 23 June 1970. The children ceased to have any contact with their natural father. They lived with their mother in their maternal grandfather's house, in a household that comprised their maternal grandfather Stanley Alexander; his wife, their maternal grandmother, their mother, Laura; their maternal aunts, Noreene and Pamela Alexander; and their maternal uncle, David Alexander. 6 In the late 1970s, Stanley Alexander moved to Australia and commenced a process which culminated, years later, in the family's permanent migration to Australia. David moved to Australia in the late 1970s. However, at least until 1979, the other members of the family, including Claudelle and Wayde, remained in Malaysia, where they continued to reside with their maternal grandmother, mother and other members of the household. 7 The children's maternal grandmother died sometime in 1978; the evidence does not reveal precisely when. Following her death, Stanley Alexander returned to Malaysia and resumed living in the Malaysian household until 1979, in circumstances to which I shall come. Meanwhile, on 6 January 1979, Laura Miles died in Malaysia. Following her death, the children continued to live with their maternal grandfather Stanley Alexander, in the same household. 8 By a petition filed in the Sessions Court of Kelang on 19 April 1979, Stanley Alexander applied for orders authorising his adoption of Claudelle and Wayde, and those orders were made on 5 July 1979. Stanley Alexander then returned to Australia and, after visa arrangements were made, the children joined him in this country in late 1979. 9 The third defendant, Noreene Alexander, migrated to Australia in about 1982, and lived with Stanley Alexander, Wayde and Claudelle. In 1990 Claudelle, Wayde and Noreene purchased a home unit, which they occupied as their home until Wayde's death in 2004. Claudelle and Noreene continue to live there. 10 Stanley Alexander died on 25 July 1991. Wayde died suddenly on 23 July 2004, survived by his sister Claudelle, his aunt Noreene, and his uncle David. Letters of Administration of his intestate estate were granted to Claudelle on 15 September 2005. 11 On 27 September 2005, Claudelle instructed investigators to endeavour to locate her natural father, for the purposes of service. After protracted investigations, he was served with an amended summons, endorsed for service outside the jurisdiction, and with a Notice to Defendant Served Outside the Jurisdiction, on 15 June 2006. He has neither filed an appearance nor moved to set aside service. In those circumstances Claudelle, as plaintiff, requires leave to proceed under the Uniform Civil Procedure Rules 2005 (NSW), r 11.4, which provides that if originating process is served on a defendant outside Australia, and the defendant does not enter an appearance, the plaintiff may not proceed against the defendant except by leave of the Supreme Court. The rule further provides that a motion for such leave may be made without serving notice of it on the relevant defendant. 12 On an application for leave to proceed under r 11.4, the applicant must show that the relevant defendant has been properly served, and that there is an arguable case under one or more of the circumstances, referred to in Schedule 6, in which service of originating process outside Australia is authorised. 13 Schedule 6 provides that an originating process may be served outside Australia in, inter alia, the following circumstances: (i) if the proceedings are properly commenced against a person served or to be served in New South Wales and a person to be served outside New South Wales is properly joined as a party to the proceedings. … (o) if the proceedings are for the administration of the estate of a person who dies domiciled in New South Wales ... of such an estate. … (u) if the proceedings are commenced to enforce in New South Wales a judgment wherever given. 14 The primary relief claimed in these proceedings is a declaration that Claudelle is beneficially entitled to Wayde's estate on Wayde's intestacy. Such proceedings are plainly proceedings for relief which might be granted in proceedings for administration of an estate of a person who died domiciled in New South Wales, and accordingly fall within paragraph (o). [The claims for declarations of the validity of the adoptions might also have been supported as being proceedings to enforce in New South Wales a judgment given in Malaysia, under sub-paragraph (u), but ultimately the claims for declaratory relief are not to be pressed, so the proceedings are more properly characterised as the administration proceedings to which I have referred]. I am therefore satisfied that the originating process in these proceedings may be served outside Australia under paragraph (o) of UCPR, Schedule 6. 15 The affidavit of Roger Chin sworn 15 June 2006 proves personal service on the first defendant of the amended summons, Notice to Defendant Served Outside Australia, and at least some of the supporting affidavit evidence. I am satisfied that the first defendant has been duly served with the summons and the Notice to Defendant Served Outside Australia, but has neither filed an appearance nor moved to set aside service. 16 Being satisfied of due service and that there is at least an arguable case that the matter is one within Schedule 6, it is appropriate to grant leave to proceed, and I will do so. 17 Adoption Act 2000 (NSW) provides for the recognition in this jurisdiction of foreign adoptions. In the case of adoptions made in countries other than convention countries and prescribed overseas jurisdictions, this is covered by ss 116 and 117, which relevantly provide as follows: 116 Recognition of foreign adoptions in countries other than Convention countries and prescribed overseas jurisdictions: (cf AC Act s 46) (1) This section applies to an order for the adoption of a person: (a) that was made (whether before or after the commencement of this section) in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction, and (b) if, at the time at which the legal steps that resulted in the adoption were commenced, the adoptive parent or parents: (i) had been resident in that country for 12 months or more, or (ii) were domiciled in that country. (2) An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if: (a) the adoption is in accordance with and has not been rescinded under the law of that country, and (b) in consequence of the adoption, the adoptive parent or parents, under the law of that country, have a right superior to that of the adopted person's birth parents in relation to the custody of the adopted person, and (c) under the law of that country the adoptive parent or parents were, because of the adoption, placed generally in relation to the adopted person in the position of a parent or parents. (3) Despite subsection (2), a court (including a court dealing with an application under section 117) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice. … (5) In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1). … 117 Declarations of validity of foreign adoptions: (cf AC Act s 47) (1) Any of the parties to an adoption under an order made outside Australia may apply to the Court for a declaration that the order complies with section 116. (2) On an application under this section, the Court may: (a) direct that notice of the application be given to such persons (including the Attorney General) as the Court thinks fit, or (b) direct that a person be made a party to the application, or (c) permit a person having an interest in the matter to intervene in, and become a party to, the proceedings. (3) If the Court makes a declaration under this section, it may include in the declaration such particulars in relation to the adoption, the adopted child and the adoptive parent or parents as the Court finds to be established. (4) For the purposes of the law of New South Wales, a declaration under this section binds the Crown in right of New South Wales, whether or not notice was given to the Attorney General, and any person who was: (a) a party to the proceedings for the declaration or a person claiming through such a party, or (b) a person to whom notice of the application for the declaration was given or a person claiming through such a person, but does not affect: (c) the rights of any other person, or (d) an earlier judgment, order or decree of a court or other body of competent jurisdiction. (5) In proceedings in a court of New South Wales, the production of a copy of a declaration under this section, certified by the nominated officer to be a true copy: (a) if the proceedings relate to a person referred to in paragraph (a) or (b) of subsection (4), is conclusive evidence, and (b) if the proceedings relate to the rights of any other person, is evidence, that an adoption was effected in accordance with the particulars contained in the declaration and that it complies with section 116. 18 In connection with applications for declarations of validity under s 117, the Rules of the Court require that notice be given to the Director-General. Supreme Court Rules 1970 (NSW), Pt 73 r 15, provides as follows: 15 Notice to be given to Director-General (1) Notice must be given to the Director-General of any application for the discharge of an adoption order, declaration of validity, declaration that an adoption is not recognised or an order terminating a legal relationship. (2) The Court must not determine any application referred to in subrule (1) unless the Director-General has had a reasonable opportunity to become a party to the proceedings. (3) Despite subrule (2), the Court may determine an application referred to in subrule (1) without the Director-General having a reasonable opportunity to become a party to the proceedings if the Court considers it necessary in the circumstances. 19 No notice under r 15(1) has been given and, were declarations of validity under s 117 pressed, the proceedings would have to be adjourned. Ultimately, however, for that and other reasons, the application for such declarations were not pressed, and the plaintiff seeks simply a determination, for the purposes of these proceedings, of whether the adoptions are valid for the purposes of this jurisdiction. 20 Moreover, Claudelle, though a party to her adoption within the definition of "parties" in the dictionary to the Adoption Act, is not a party to the adoption of Wayde, and in those circumstances does not apparently have standing to claim a declaration under s 117 of the validity of his adoption in any event. This is another reason why declarations under that section were ultimately not pursued. 21 It was not immediately apparent why the validity of Claudelle's adoption, as distinct from that of Wayde, is an issue in the proceedings for administration of Wayde's estate. Any standing which Claudelle has under the Family Provision Act depends upon her fulfilling the criteria specified in paragraph (d) of the definition of "eligible person" in that Act. However, it is possible, though she is the natural sister of Wayde, that her status as a sibling for the purpose of the law of intestacy might be affected by the circumstance that one or both of them has been adopted, and for that reason I have concluded that it is sufficiently arguable that the status of her adoption might impact on her status as Wayde's sibling that I should consider the validity of her adoption in these proceedings. 22 Accordingly, the questions for resolution are: (1) whether the adoption of Wayde Stanley Miles by Stanley Alexander, pursuant to the order of the Sessions Court of Kelang, in the State of Malaysia, made on 5 July 1979 is valid and effective for the purposes of the law of New South Wales; and (2) whether the adoption of Claudelle Sharon Clare Miles by Stanley Alexander by order of the Sessions Court of Kelang, in the State of Malaysia, made on 5 July 1979 is valid and effective for the purposes of the law of New South Wales. 23 Resolution of those questions depends upon s 116 of the Adoption Act, to which I have already referred. That such issues can be resolved ancillary to proceedings other than those in which a s 117 declaration is sought is apparent from the terms of s 116(3). It is necessary to determine, first, whether the adoption orders in Kelang are orders to which s 116 applies, which is covered by sub-s (1) and, secondly, whether the orders for adoption satisfy the criteria referred to in sub-s (2) of that section. 24 As to whether the order is one to which s 116 applies, s 116(5) provides that in any proceedings it is to be presumed, unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia, but is not a convention country or a "prescribed overseas jurisdiction", complies with sub-s (1). Malaysia is not a signatory to the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption, or otherwise within the definition of "convention country". The only prescribed overseas jurisdiction under the Family Law (Bilateral Arrangements - Inter-country Adoption Regulations 1998 (Cth) is the Peoples Republic of China. Accordingly, Malaysia is not a prescribed overseas jurisdiction as defined in the dictionary to the Adoption Act. 25 It is in respect of the criteria in sub-s (1)(b) that I have been caused most difficulty. The legal steps that resulted in the adoption were commenced, so it would seem, on 19 April 1979, when the petition was filed in the Kelang Court. The evidence discloses that Stanley Alexander, who had moved to Australia in the late 1970s, returned to Malaysia sometime in 1978, following the death of his wife, but I am unable to say on the evidence whether he had been resident in Malaysia for 12 months or more as at 19 April 1979, although it is not impossible that he was. Having returned to Malaysia after his wife's death, it seems that he returned to Australia not long after the adoption process was completed, and that once the necessary immigration matters were attended to, Wayde and Claudelle then joined him in Australia. 26 Nonetheless, I think it can be said that the evidence does not establish that Stanley Alexander - who, plainly enough, was domiciled in Malaysia at least until the late 1970s - had changed his domicile by adopting a domicile of choice in Australia prior to 1979. Indeed, the contrary is suggested by the circumstance that his household - that is to say his wife - and their daughters - remained in Malaysia. He may well have been contemplating changing his domicile, but given that his household remained in Malaysia, and his return to Malaysia following his wife's death, he is not shown by 1979 to have adopted a domicile of choice in Australia. 27 So far as the evidence goes, therefore, I am not persuaded that he had by 1979 lost his Malaysian domicile. Accordingly, I am of the view that the presumption raised by s 116(5) has not been displaced, in that the evidence does not show that he had not been resident in Malaysia for 12 months, or that he was not domiciled in Malaysia, as at 19 April 1979. Accordingly, the order of the Kelang Court is presumed to be one that satisfies s 116(1). 28 As to the requirements of s 116(2), the report of Messrs Raja Darryl and Loh, solicitors of Kuala Lumpur, establishes that the adoption orders were made in accordance with the law of Malaysia. There is no basis for supposing that they have been rescinded. The same report establishes that, in consequence of those adoption orders, the adoptive parent, Stanley Alexander, under the law of Malaysia had a right superior to that of the surviving birth parent in relation to the custody of the adopted persons and, because of the adoption, was placed generally in relation to the adopted persons in the position of a parent. 29 Accordingly, pursuant to s 116(2) the orders of the Kelang Court have the same effect as an adoption order made under the Adoption Act 2000. 30 My orders are:- 1. Grant leave to the plaintiff under UCPR r 11.4 to proceed against the first defendant. 2. The two questions for determination are answered as follows: (a) Is the adoption of Wayde Stanley Miles by Stanley Alexander, pursuant to the order of the Sessions Court of Kelang, in the State of Malaysia, made on 5 July 1979, valid and effective according to the law of New South Wales? Answer: Yes. (b) Is the adoption of Claudelle Sharon Clare Miles by Stanley Alexander by order of the Sessions Court of Kelang, in the State of Malaysia, made on 5 July 1979, valid and effective according to the law of New South Wales? Answer: Yes. 3. Order that the costs of the separate questions be the plaintiff's costs in the proceedings. 4. Stand these proceedings, and proceedings 1134/06, over to the Expedition List on Friday 8 September 2006. 5. Direct that the plaintiff notify the other parties in these proceedings, and the plaintiff in proceedings 1134/06, of the orders made today, and of the listing of the matter for 8 September 2006. ********** 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. 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