By a summons filed on 19 December 2019, the plaintiff seeks a declaration pursuant to s 117 of the Adoption Act 2000 (NSW) (the Act) that an adoption order made in Vietnam on 5 April 2018 in respect of the child the subject of this proceeding (the Child) in favour of the plaintiff (the Adoptive Mother) complies with s 116 of the Act. In the draft orders provided to the Court, the Adoptive Mother also seeks orders that the Court dispense with the consent of the Child's natural parents pursuant to s 67(1)(d) of the Act and with notice of the application to the Child's natural parents under s 88(4) of the Act together with an order giving the Court's approval to the proposed name of the Child.
The Adoptive Mother is an Australian citizen who has lived and worked in Vietnam since August 2011. The Child was born in Vietnam in March 2010. She was abandoned at the gate of a church operated orphanage. The Adoptive Mother commenced the procedure required for the adoption of a child in Vietnam in 2017. An order for adoption of the Child by the Adoptive Mother was made on 5 April 2018 in Vietnam in accordance with Decree no. 19/2011/ND-CP, which, according to expert evidence given by a Vietnamese lawyer, is the Decree regulating adoptions in Vietnam. The evidence is that the Adoptive Mother intends to return permanently to New South Wales once her employment in Vietnam comes to an end. She has family and a residential property here.
Sections 116 and 117 of the Act relevantly provide:
116 Recognition of foreign adoptions in countries other than Convention countries and prescribed overseas jurisdictions
(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(a) the adoption is in accordance with and has not been rescinded under the law of that country, and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) …
(4) A court that refuses to recognise an adoption may, at the time of refusing or at a later time, give leave to the applicant to seek an order for the adoption of the child concerned.
117 Declarations of validity of foreign adoptions
(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.
Adoption of GK (Anonymised) [2020] NSWSC 362 | Case summary | Zoe
It is apparent from the terms of ss 116 and 117 that a declaration made under or in respect of those sections is not an order for the adoption of the relevant child. Rather, s 116(2) provides that an order for adoption of a child in a country other than Australia that meets the requirements set out in subsection (1) is to have the same effect as an adoption order made under the Act provided that the conditions set out in subsection (2) are satisfied.
Section 117 gives the Court power to make a declaration that the order made in the foreign country complies with the requirements of s 116. Such an order is binding on the Crown and is conclusive that the conditions set out in s 116 have been satisfied. The Court 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".
If the Court refuses to make such a declaration, it may give the person seeking the declaration leave to seek an order for the adoption of the child concerned. Such an adoption would have to satisfy the requirements of the Act.
Before making a declaration, the Court may direct that notice of the application be given to such persons as the Court thinks fit. But unless the Court gives such a direction, a notice need not be given to anyone.
The requirements of consent and therefore the question whether the Court should make an order dispensing with consent and notice to the birth parents only arise on an application for adoption. It does not arise on an application for a declaration under s 117. Consequently, in my opinion, it is neither necessary nor appropriate to make orders under s 67(1)(d) or s 88(4) of the Act.
In the circumstances of this case, there is no reason to order that the proceeding be served on any other person. Plainly, it cannot be served on the Child's natural parents, since there are no means of identifying who they are.
Vietnam is not a Convention country or a prescribed overseas jurisdiction. Consequently, the requirements of s 116 of the Act will be satisfied if:
1. the Adoptive Mother had been a resident of Vietnam for at least 12 months at the time at which the legal steps that resulted in the adoption were commenced;
2. the adoption was in accordance with and has not been rescinded under the law of Vietnam;
3. in consequence of the adoption, the Adoptive Mother, under the law of Vietnam, has a right superior to that of the Child's birth parents in relation to her custody;
4. under the law of Vietnam, the adoptive parent is, because of the adoption, placed generally in relation to the Child in the position of a parent.
I am satisfied that each of these requirements has been met. As I have said, the evidence is that the Adoptive Mother has been a resident of Vietnam since 2011, well in excess of 12 months before she began the process of adopting the Child. Before the Court is a translation of the Vietnamese Decree regulating adoptions together with an opinion of a practising Vietnamese lawyer. It is plain from that material that the effect of adoption under Vietnamese law is that the adopting parent obtains a right superior to that of a child's birth parents in relation to his or her custody and is generally placed in the position of a parent. It is also apparent from the material before the Court that the relevant authority in Vietnam has made an adoption order in favour of the Adopting Mother. There is no suggestion that it has been revoked.
It is appropriate that the Court make the declaration sought in view of the Adopting Mother's expressed intention to return permanently to New South Wales once her current employment comes to an end.
That leaves the question of the child's name. In the case of an adoption under the Act, s 101(1)(b) of the Act states that, on the making of an adoption order in relation to a child under the age of 18, the child "is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents". However, that section has no application in the present case. A declaration under s 117 is not an order for adoption. There is nothing, however, in the Act which prevents the registration of the Child's birth under s 13(4) of the Births, Deaths and Marriages Registration Act 1995 (NSW), which provides:
If a child is born outside the Commonwealth, but the child is to become (or in the case of a stillbirth, was to become) a resident of the State, the birth may be registered under this Act.
Nor is there anything preventing the Court from including in the declaration particulars of the Child's name.
It follows that the orders of the Court are:
1. Declare that the order for the adoption of GK by LM made on 5 April 2018 by the Head Office of Khanh Hoa Justice Department in the Socialist Republic of Vietnam complies with s 116 of the Adoption Act 2000 (NSW).
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Decision last updated: 07 April 2020