In the matter of N and the Adoption Act 2000 [2012] NSWSC 1263

Supreme Court New South Wales

Medium Neutral Citation: In the matter of N and the Adoption Act 2000 [2012] NSWSC 1263 Hearing dates: In Chambers Decision date: 19 October 2012 Jurisdiction: Equity Division - Adoption List Before: Black J Decision: Orders sought in application made. Catchwords: FAMILY LAW - Adoption - Application for orders dispensing with consent of natural parents - Ancillary orders dispensing with notice to natural parents also sought - Whether after "reasonable inquiry" the natural parents can be found - Name - Application for approval for change of name - Whether name change is in child's best interests. Legislation Cited: - Adoption Act 2000 (NSW) ss 67(1)(a), 88, 84(4),101(5) - Immigration (Guardianship of Children) Act 1946 (Cth) Cases Cited: - Application of MSC and CJC; Re HES [2011] NSWSC 950 - Re Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385 - Re DYK and the Adoption Act 2000 [2005] NSWSC 1045 - Re JSK and the Adoption Act 2000 [2006] NSWSC 1188 - Re K and the Adoption Act 2000 [2005] NSWSC 858 - Re KSE and the Adoption Act 2000 [2006] NSWSC 92 Category: Principal judgment Parties: PM & AM (Applicants) File Number(s): 106/2011

Judgment 1An order is sought in this application for the adoption of the child ("N") in favour of the adopting parents and to approve the name by which N is to be known. Orders are also sought in this application that the consent of N's natural mother and natural father to her adoption be dispensed with pursuant to s 67(1)(a) of the Adoption Act 2000 (NSW). Those orders are necessary because a record of a foreign court referring to such consent is not sufficient to satisfy the requirements for consent in the Adoption Act: Application of MSC and CJC; Re HES [2011] NSWSC 950. An order is also sought that notice of the application for an adoption order to N's natural mother and father also be dispensed with pursuant to s 88(4) of the Adoption Act. 2Section 67(1)(a) of the Adoption Act relevantly provides that: 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. ... Section 88 of the Adoption Act in turn provides that the Court may not make an adoption order unless at least 14 days notice of the application for the order has been given to, relevantly, any person whose consent to the adoption of the child concerned is required under the Act and has not been given, or the requirement for which has been dispensed with by the Court. Section 88(4) provides that the Court may dispense with the giving of that notice. 3By way of background, the adopting parents lodged an application to adopt a child from overseas and were approved to adopt a child from Taiwan. Information concerning their home circumstances was provided to an adoption agency in Taiwan ("Agency"), which was approved by the Taiwanese Government to conduct inter-country adoption. N was born to a single woman in Taiwan who did not feel able to care for N as a single parent and placed her for adoption into the care of the Agency. The adopting parents were subsequently advised of information concerning N's social and medical background, indicated their wish to adopt her and travelled to Taiwan to collect her. The adopting parents met with N's birth mother and her brother and sister while in Taiwan and have expressed hope that they can maintain contact with the birth mother. It appears that the birth mother has lost contact with the birth father and does not now know his location. 4N has now been in the adopting parents' care for over 2 years. There is evidence that she is developing a secure attachment to the adopting parents and an independent adoption assessor has recommended that the adoption be supported. The delegate of the Department of Family and Community Services ("Department"), who is in turn acting as delegate for the Minister for Immigration, has consented to the adoption and executed an order which exempts her from provisions of the Immigration (Guardianship of Children) Act 1946 (Cth) with effect from the date an order of adoption is made. I am satisfied as to the merits of the application and would make the orders sought if I have power to do so under the Adoption Act. 5In Re K and the Adoption Act 2000 [2005] NSWSC 858, White J noted that what amounts to "reasonable inquiry" under s 67(1)(a) of the Adoption Act is to be evaluated from the perspective both of the applicants and of the person whose consent would otherwise be required. In Re JSK and the Adoption Act 2000 [2006] NSWSC 1188, Brereton J noted that the fact that the birth mother had relinquished a child to an adoption agency in Korea, while not "consent" for the purposes of the Adoption Act, was highly relevant in considering whether any further inquiries would be "reasonable". Brereton J similarly made orders dispensing with the consent of a child's natural parents in Re DYK and the Adoption Act 2000 [2005] NSWSC 1045, on the basis of evidence that the capacity of the applicants in that case to make any further inquiry to identify the child's natural parents was limited. 6I am satisfied that the Court can dispense with the consent of N's birth father and with notice to him on the basis that he cannot be identified after reasonable inquiry under s 67(1)(a) of the Adoption Act. However, a difficulty arose with the application to dispense with the birth mother's consent on the information initially available to the Court, which the Court drew to the attention of the adopting parents and the Department. A "consent dispense order" under s 67(1)(a) of the Adoption Act requires that the person whose consent is otherwise required cannot after reasonable inquiry be found or identified. There was no evidence that N's birth mother could not be found or identified in the material before the Court and, to the contrary, it appeared that she could be both be found and identified since the adopting parents had met with her while in Taiwan. 7The Department has now filed further evidence in this matter. After the issue which I noted above was raised with them, it raised it with the Agency which advised that it would not contact J's birth mother concerning her consent to J's adoption. In particular, the Agency expressed the view that a full and final adoption order had been issued by the Court in Taiwan and the Taiwanese Court was satisfied of the relevant matters and that it was not in a position to contact a former legal guardian of a child regarding new or additional consent "as under Taiwan law they have no legal authority regarding the child from the date of the Taiwanese adoption". The Department's evidence points to the importance of maintaining a good working relationship with the Agency and to the potential adverse impact of the Department's attempting to contact N's birth mother independently of the Agency. I am satisfied that these are legitimate concerns. The Department also pointed to the significance of the ongoing relationship with the Agency, which facilitates dealings between adopting parents and the birth parents and provides information needed by the adopting parents in relation to adopted children. 8In this case, it is theoretically possible that the adopting parents could, by making further private inquiries, locate the birth mother. I do not think that it is reasonable that they be required to do so in circumstances that the Department does not consider it appropriate for it to take steps to do so, given the concerns that it has identified as to potential prejudice to its continuing relationship with the Agency. I am therefore satisfied that it would not be reasonable to require further inquiry to be made in respect of the birth mother and that, whatever the previous situation, she cannot now after reasonable inquiry be found. I am also satisfied that it is in the interests of N that a consent dispense order in respect of the birth mother be made. 9For the same reasons, I am satisfied that notice should not be required to be given to the birth parents under s 88 of the Adoption Act. 10The application also seeks an approval for a change in N's given name. Such a change can be approved under s 101(5) of the Adoption Act if that change is in N's best interests. The name proposed for N reflects her heritage by adding an Anglo-Saxon name after her forename and the second name to be adopted will reflect that she will grow up in an Australian cultural context and may be a matter of convenience and benefit: Re Application of O and P [2005] NSWSC 1297; (2005) 34 Fam LR 385; Re KSE and the Adoption Act 2000 [2006] NSWSC 92. I am satisfied that these matters together indicate that the name sought by the applicants is in N's best interests and I will approve the proposed name change. 11I will therefore make the orders sought in the Application.