Application of MSC and CJC; re HES [2011] NSWSC 950

Supreme Court New South Wales

Medium Neutral Citation: Application of MSC and CJC; re HES [2011] NSWSC 950 Decision date: 24 August 2011 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Decline to make adoption order. Catchwords: FAMILY LAW AND CHILD WELFARE - Adoption - child from country not party to Hague Convention - consent dispense order sought - Taipei court records birth mother's consent -evidence does not meet requirements of (NSW) Adoption Act 2000 - consent not in accordance with Act - evidence of address of birth mother - adoption order declined. Legislation Cited: (NSW) Adoption Act 2000, s 52, s 54, s 58, s 59, s 60, s 61, s 62, s 63 s 67, s 108, s 116 Cases Cited: Application of JGP & ASP, Re AJP [2011] NSWSC 151 Category: Principal judgment Parties: MSC & CJC (applicants) HES (child) File Number(s): A40 / 2011

Judgment 1On 23 August 2011 I delivered a judgment in which I concluded that, in the absence of evidence that established any ground for a "Consent Dispense Order", it was not open to the Court to make an adoption order. Today, the Director-General has provided to the Court a "Certificate of Verification - Civil Ruling" of the Taipei District Court, Taiwan dated 24 February 2010, certifying that that court "passed the first Ruling to the Adoption Approval ... case between the petitioners MSC etc and the Adoptee HES on 4 February 2010 and verified it on 22 February 2010". The ruling describes the petitioners/adopters as MSC and CLC, the petitioner adoptee as HES whose "legal representative" was his birth mother CCS. The ruling was: Approval is given to the adoption of HES (Male, born October XX, 2009, ID Card No.: XXXXXXXXXX) to become the adopted son of MSC (Male, born on February XX, 1972, the citizen of Australia) and CLC (Female, born on November XX, 1973, the citizen of Australia) on December 1, 2009. The Petitioners shall pay the cost of the procedures. 2Relevantly, the judgment records: The adoptee, through the agreement of the adoptee's birthmother, CCS, establishes the adoptive relationship with the adopters. The following are also presented: the household registry records of the adoptee, his birth mother and her legal representative and the adopters' passport copies, the adoption agreement, adoption approval, the home study investigation report, police certificates, health certificates and financial statement. ... It is evidenced that the adopters are Australian couple and are at least twenty years older than the adoptee. The adoptee is a minor of younger than seven years of age and his declaration of intention and acceptance of the declaration of intention is made through his birthmother CCS ... . ... The adoptee's father is unknown and his birthmother is a minor. Because of poor family circumstances, they receive low-income subsidy and have no abilities to take care of and raise the adoptee. They agree to place the adoptee for international adoption unconditionally. 3While this is some evidence of consent on the part of the birth mother, it is not sufficient to meet the requirements of the (NSW) Adoption Act 2000, for the reasons that follow. 4Taiwan is not a convention country; accordingly the adoption order of the Taipei Court cannot be recognised under s 108. Nor can that order be recognised under s 116, as the applicants were not domiciled, nor resident for 12 months, in Taiwan. The Adoption Application is made, as in those circumstances it must be, ab initio under NSW law [see Application of JGP & ASP, Re AJP [2011] NSWSC 151] . 5Section 52 of the Act prohibits the Court from making an adoption order unless consent has been given by the child's parents: 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. 6Section 54 provides that such consent is not required if it has been dispensed with by the Court: 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. 7The circumstances in which consent can be dispensed with are limited by s 67 as follows: 67 When can Court dispense with consent of person other than the child? (1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified, or (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent of, or person who has parental responsibility for, the child - there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36. 8As I have previously indicated, only (a) appears to be potentially applicable in this case, and as things stand there is evidence of the birth mother's address, and no evidence that she cannot be found. 9Section 58 provides that consent is ineffective unless given in accordance with the Act: 58 When is consent ineffective? (1) Consent to a child's adoption is not effective unless it is: (a) informed consent, and (b) given in accordance with this Act. (2) Consent given by a person (other than a child under 18 years of age) is not effective if it appears to the Court that: (a) it was not given in accordance with this Act, or (b) it was obtained by fraud, duress or other improper means, or (c) the instrument of consent has been altered in a material particular without authority, or (d) the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent. (3) Consent is not effective if it is revoked during the time allowed by section 73. (4) Consent given by a birth parent who is less than 18 years of age is not effective if it appears to the Court that the birth parent did not have the benefit of independent legal advice concerning the adoption before the instrument of consent was signed by the birth parent. (5) Consent to a child's adoption given in another State under the law of the other State is an effective consent for the purposes of this Act. Note. Chapter 5 provides for the recognition of certain adoptions if an adoption compliance certificate has been issued by the appropriate authority of a country outside Australia. Such a certificate will only be issued if the appropriate consents have been given to the adoption. See eg Article 4 of the Convention (which is set out in Schedule 1). 10Section 58(5) refers to another State of Australia, not to another country. Accordingly, unless there has been consent in accordance with the Act , there is no effective consent. 11Sections 59 (mandatory written information), 60 (when is consent to be given), 61 (form of consent), 62 (consent must be witnessed by person independent of counsellor) and 63 (person giving consent must be counselled) stipulate formal requirements for consent with the result that, if not complied with, a consent is not one "given in accordance with this Act" for the purposes of s 58(1)(b) and (2)(a), and is therefore not an effective consent. 12I am unable to see how the "Civil Ruling" of the Taipei Court establishes that consent in accordance with the Act has been given. Given the evidence that the birth mother gave consent under Taiwanese law, I would strive mightily to find some way of dispensing with the requirement for a further consent. But given that this adoption application must proceed as one under the New South Wales Act, and not by way of recognition of a foreign adoption, I can on the present evidence find no way of doing so [cf Application of JGP & ASP, Re AJP [2011] NSWSC 151] . 13Accordingly, before an adoption order can be made, it will be necessary for evidence to be adduced, either that consent in accordance with the (NSW) Adoption Act has been given by the birth mother, or that she cannot after reasonable inquiry be found. 14If the parties wish to make submissions to the contrary, the matter may be listed by arrangement with my Associate. I direct that the registrar notify the Director-General and the applicants of this decision and provide to each of them a copy of this judgment.