Re WS (No 2) [2017] NSWSC 475

Supreme Court New South Wales

Medium Neutral Citation: Re WS (No 2) [2017] NSWSC 475 Hearing dates: 21, 22, 23 February 2017 Date of orders: 27 April 2017 Decision date: 27 April 2017 Jurisdiction: Equity Before: Hallen J Decision: In answer to the separate question, the Court does have jurisdiction to hear and determine the Plaintiffs' Summons for adoption. As at the date of her move from Thailand to Australia, being 6 March 2016, the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption did not apply, because WS, then, was not a child habitually resident in one Contracting State (Thailand) who has been, is being, or is to be, moved to another Contracting State (Australia) either after her adoption in the State of origin by spouses or by persons habitually resident in the receiving State (Australia), or for the purposes of such an adoption in the receiving State (Australia) or in the State of Origin (Thailand). Catchwords: FAMILY LAW & CHILD WELFARE – Adoption – Separate question to be determined - Whether Court has jurisdiction to make order for adoption

FAMILY LAW & CHILD WELFARE – Adoption –Prospective adoptive parents sought adoption of child relative from Thailand – Thailand and Australia are parties to Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption – Prospective adoptive parents made application pursuant to Chapter 4 Adoption Act 2000 (NSW) – Did not make application under Regulation 15 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) –– Where Adoption Act and Commonwealth Regulations provide different regimes for intercountry adoptions between parties to Convention – Where Commonwealth Regulations inapplicable if Adoption Act has same or comparable effect to Commonwealth Regulations – Unnecessary to decide whether Adoption Act has same or comparable effect to Commonwealth Regulations – Unnecessary to decide whether child is a non-citizen child. Legislation Cited: Adoption Act 2000 (NSW) Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) Family Law Act 1975 (Cth) Immigration (Guardianship of Children) Act 1946 (Cth) Judiciary Act 1903 (Cth) Migration Regulations 1994 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Adoption of BW [2017] NSWSC 174 Application of ARD and RGD; re FGG and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) [2014] NSWSC 1963 Application of MGO and AAO; re LDC [2011] NSWSC 951 B v D [2008] EWHC 1246 BA (A Minor) (Hague Convention: habitual residence: consent: acquiescence) [2016] NIFam 8 C v S (minor: abduction: illegitimate child) [1990] 2 All ER 449 CSK v Secretary, Department of Family and Community Services [2016] NSWCATAD 292 H v H (1995) 13 FRNZ 498 (HC) In the matter of A (Children) [2014] AC 1; [2013] UKSC 60 LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 Punter v Secretary for Justice as the New Zealand Central Authority [2004] NZLR 28 Punter v Secretary for Justice [2007] 1 NZLR 40 Re A (Wardship: Jurisdiction) [1995] 1 FLR 767 Re Adoption Application by KGC and TGC [2007] NZFLR 851 Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606; [2016] UKSC 4 Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC 562 Re KL (A Child) (Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2014] AC 1017; [2013] UKSC 75 Re LC [2014] UKSC 1 Re P-J (Children) (Abduction: Consent) (2010) 1 WLR 1237 Re S and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438 Re Susan [2009] NSWSC 592 Re WS [2016] NSWSC 919 SFH and MEM [2008] NZFC 170 Texts Cited: Macquarie Dictionary Online, 2016, Macquarie Dictionary Publishers OED Online. Oxford University Press, March 2017 Category: Principal judgment Parties: Ms SS (first Plaintiff) Mr PGH (second Plaintiff) Separate Representative for the Child Secretary, Department of Family & Community Services (first Defendant) Attorney General for New South Wales (second Defendant) Attorney General for the Commonwealth (Intervener) Representation: Counsel: In Person (Plaintiffs) Ms S Christie (first and second Defendants) Ms Z Heger (Intervener) Ms D Ward (child WS)