Akbarali v Bren

Supreme Court of NSW|2017-02-03|Before: Brereton J

Solicitors: Crown Solicitor (P) File Number(s): A67 of 2016

Judgment

The child the subject of these proceedings, BW, was born in Korea on 25 March 2013, to a single mother aged 14. On 19 March 2015, RCW and LMW, a couple then resident in New South Wales, were approved, through the Family and Community Services Intercountry Adoption Programme, as a match for the child. An adoption order was made in their favour in Korea on 12 March 2016, but before then - on 10 January 2016 - for reasons associated with RCW's employment, they moved to Hong Kong. On 1 April 2016, LMW travelled to Korea, collected the child and returned with him to Hong Kong. However, the placement broke down. The child was brought to Australia, arriving on 31 May 2016, and on 7 June 2016, RCW and LMW signed a parenting plan for the purposes of (CTH) Family Law Act 1975, s 63C, allocating parental responsibility for BW to the Secretary, Department of Family and Community Services on an interim basis. Consequent upon the filing of a summons for adoption and a notice of motion on 9 June 2016, this Court that day made an order, pursuant to (NSW) Adoption Act 2000, s 84(2), that until further order the Secretary, Department of Family and Community Services is allocated parental responsibility for the child.
The Secretary considers that adoption is the best permanent solution for the child, and proposes to pursue that course. However, whose consents to any such adoption are required (if not dispensed with) depends on whether the Korean adoption of 12 March 2016 is recognised in New South Wales: if the Korean adoption is recognised, then the consents of RCW and LMW as the child's legal parents would be required; but if it is not, then the consents of the child's Korean birth parents would be required. The Secretary wishes to establish the position in this respect, before proceeding to seek any requisite consent, or applying to have it dispensed with.

Scope of a preliminary hearing

For that purpose, the Secretary has applied by way of preliminary hearing for what is characterised as a determination in relation to "the validity of a consent to the adoption of a child" [1] or "dispensing with consent". [2] However, I do not consider that what is sought really falls within those terms. In truth, what the Secretary seeks to have determined is whether RCW and LMW were resident in New South Wales at the relevant time, for the purpose of the recognition of the Korean adoption in New South Wales.
(NSW) Adoption Act 2000, s 80, provides that the Court may hold a preliminary hearing in relation to any matter concerning or arising out of an application to adopt a child that is prescribed by the regulations: 80 Preliminary hearings (1) The Court may hold a preliminary hearing in relation to any matter concerning or arising out of an application to adopt a child that is prescribed by the regulations. (2) The Court must hold a preliminary hearing before the placement for adoption of: (a) an Aboriginal child with a prospective adoptive parent other than an Aboriginal, or (b) a Torres Strait Islander child with a prospective adoptive parent other than a Torres Strait Islander. (3) The Court may hold a preliminary hearing on its own motion or on application of a person of a class prescribed by the regulations. (4) The Court may give such directions and make any order it thinks fit at a preliminary hearing. (5) Without limiting subsection (4), the Court may make an order as to parental responsibility for the child (including an interim order) and any order that it may make at an adoption hearing.
(NSW) Adoption Regulation 2015, cl 89(1), prescribes six such matters: 89 Preliminary hearings (1) For the purposes of section 80 (1) of the Act, decisions about the following are prescribed matters in relation to which the Court may hold a preliminary hearing: (a) the identity of a child as an Aboriginal child or Torres Strait Islander child, (b) the validity of a consent to the adoption of a child, (c) the provision of contact with a child, (d) the allocation or exercise of parental responsibility for a child, (e) dispensing with consent, (f) matters relating to a child's revocation of consent before the making of an adoption order.
The validity or recognition of a previous adoption is not a prescribed matter, and a question arises whether that issue can be determined at a preliminary hearing. In my view it can, for any of the following reasons.
First, s 80(4) and (5) suggest that s 80(1) and the matters prescribed in the Regulation are not exclusive of the matters in relation to which a preliminary hearing may be held.
Secondly, Adoption Act, s 83, provides that rules of court may be made for and with respect to preliminary hearings. In pursuance of that power, UCPR r 56.6 provides that applications for any order or direction that the court should determine before it determines the application for an adoption order are appropriate for a preliminary hearing, and provides a non-exhaustive list of examples of such applications: (1) Applications appropriate for a preliminary hearing are applications for any order or direction that the Supreme Court should determine before it determines the application for an adoption order or other principal application. (2) Applications appropriate for a preliminary hearing include applications relating to the following: (a) joinder of a party in accordance with section 118 of the Adoption Act 2000, including joinder of a non-consenting father, (b) giving notice of proceedings to any person, (c) appointing a guardian ad litem in accordance with section 123 of the Adoption Act 2000 or guardian ad litem or amicus curiae in accordance with section 124 of the Adoption Act 2000, (d) a consent dispense order, (e) the placement for adoption of an Aboriginal or Torres Strait Islander child, if a preliminary hearing is required by s 80(2) of the Adoption Act 2000, (f) the adoption of an Aboriginal or Torres Strait Islander child, (g) the registration of an adoption plan, (h) dispensing with notice under section 88(4) of the Adoption Act 2000, (i) the revocation of a consent dispense order.
Thirdly, the provisions of Adoption Act, s 80, do not exclude the other provisions of the UCPR which enable a court to determine interlocutory questions, and preliminary questions, and in particular UCPR r 28.2, which provides that the court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

Applicable law

The Republic of Korea is a "prescribed overseas jurisdiction" for the purposes of (CTH) Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998, [3] and thus also for the purposes of Chapter 5, Part 2, Division 3 of the Adoption Act. [4]
The Commonwealth Bilateral Arrangements Regulations provide for the automatic recognition in Australia of an adoption of a child from a prescribed overseas jurisdiction by a person who was habitually resident in Australia at the time of the adoption: 5 Australian adoption in a prescribed overseas jurisdiction of a child from that overseas jurisdiction (1) This regulation applies to an adoption of a child in a prescribed overseas jurisdiction (including an adoption that took place in the overseas jurisdiction before the overseas jurisdiction was prescribed under regulation 4) if: (a) at the time of the adoption, the child was habitually resident in the overseas jurisdiction; and (b) the adoption was by a person habitually resident in a State of Australia; and (c) the competent authority of that State has agreed that the adoption may proceed; and (d) a certificate (an adoption compliance certificate) is in force in relation to the adoption that: (i) was issued by a competent authority of the overseas jurisdiction; and (ii) states that the adoption was carried out in accordance with the laws of the overseas jurisdiction; and (e) the adoption has the effect of ending the legal relationship between the child and each person who was, immediately before the adoption, the child's parent; and (f) an Australian court has not made: (i) an adoption order in relation to the child; or (ii) an order recognising or declaring the overseas adoption to be valid. (2) The adoption is recognised and effective, for the laws of the Commonwealth and each State, on and after the date of effect of the adoption in the prescribed overseas jurisdiction. (3) If the date of effect of the adoption in the prescribed overseas jurisdiction was before the commencement of this regulation, the adoption is taken to have been recognised and effective, for the laws of the Commonwealth and each State, on and after the date of effect of the adoption. Note: For the application of these Regulations to a State, see regulation 8.
However, regulation 8 provides that a provision of the Regulations does not apply to a State in which there is in force a law having the same effect as, or comparable effect to, that which the provision would otherwise have: 8 Application (1) A provision of these Regulations does not apply to a State in which there is in force a law (an overseas jurisdiction adoption law) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the adoption. (2) Nothing in these Regulations affects: (a) the jurisdiction of a court of the Commonwealth or a State, or the power of an authority, under an overseas jurisdiction adoption law, to entertain proceedings, make an order or take any other action in relation to an overseas jurisdiction adoption; or (b) any such order or action; or (c) the operation, within a State, of an overseas jurisdiction adoption law of the State.
(NSW) Adoption Act, s 113, provides as follows: 113 Adoption by NSW parent in prescribed overseas jurisdiction of a child from that overseas jurisdiction (1) This section applies if: (a) an adoption, by a person who is habitually resident in the State, of a child who is habitually resident in a prescribed overseas jurisdiction, is granted under the law of that overseas jurisdiction, and (b) an adoption compliance certificate issued by a competent authority of that overseas jurisdiction is in force in relation to the adoption. (2) The adoption is recognised and effective, for the law of the State, on and after the adoption takes effect in the overseas jurisdiction.
Section 114 provides: 114 Effect of recognition For the purposes of the law of the State, an adoption of a child that is recognised and effective under section 113 is to be treated as having the same effect as an adoption order made under this Act. Note. See Part 11 of Chapter 4, especially section 95 (General effect of adoption orders) and regulation 6 of the Commonwealth Bilateral Arrangements Regulations.
The question arises whether s 113 has the same effect as, or comparable effect to, Regulation 5.
In Re S and the Adoption Act 2000 (NSW) (No 2), [5] White J considered Regulation 34 of the (CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, which provides as follows: 34 Application (1) A provision of these Regulations, except Regulations 5, 6, 7, 8, 9, 12 and 13, does not apply to a State in which there is in force a law (an intercountry adoption law) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State. (2) Nothing in these Regulations affects: (a) the jurisdiction of a court of the Commonwealth or a State, or the power of an authority, under an intercountry adoption law to entertain proceedings, make an order or take any other action in relation to an intercountry adoption; or (b) any such order or action; or (c) the operation, within a State, of an intercountry adoption law of the State.
His Honour held that in Regulation 34, the expression "comparable effect" was used in the sense of "similar effect". [6] Observing that: 1. if Adoption Act s 107 were a "stand-alone" avenue for the making of an adoption order, it did not contain the substantive requirements of Regulation 15(1) - that is, that arrangements for the adoption were made in accordance with the Convention, the laws of the Commonwealth and the relevant State, and the laws of the Convention country; and 2. if (as his Honour thought) it were not a stand-alone provision, then it picked up the requirements of Chapter 4 of the Act, the effect of which was substantially different from the effect of the Regulations, under which the Court's function was only to determine whether the requirements of the Convention had been complied with (and not to make its own judgment as to the best interests of the child). 3. His Honour concluded that s 107 did not have the same or comparable effect as Regulation 15.
There are differences between the requirements of s 113 and those of Regulation 5. In particular, s 113 contains no equivalent requirements to those in Regulation 5(1)(c) (that the competent authority of that State has agreed that the adoption may proceed), (e) (that the adoption has the effect of ending the legal relationship between the child and each person who was, immediately before the adoption, the child's parent), and (f) (that an Australian court has not made an adoption order, or an order recognising or declaring the overseas adoption to be valid).
Conceivably, in those respects, s 113 could grant recognition to an overseas adoption in a prescribed overseas jurisdiction in some cases in which such recognition would not be available under Regulation 5. However, broadly speaking, s 113 - like Regulation 5 - grants automatic recognition to such an adoption where the child is habitually resident in the prescribed overseas jurisdiction and the adopters are habitually resident in (relevantly) New South Wales, and an adoption compliance certificate is in force. While I respectfully agree with White J that in this context "comparable" means "similar", the use of the words "or comparable effect to" in addition to "the same effect as" indicate that an identical equivalence of effect is not required. In Re S, as White J demonstrated, the two relevant provisions had a markedly different effect. In this case, however, the two provisions in question, though not identical, are similar in effect.
It might be argued that the concluding words of Regulation 8(1) - "for the adoption" - have the result that the applicability of the Regulations vis-a-vis a comparable State law must be determined on a case-by-case base, according to the outcome for each individual adoption. However, I do not think that is so. First, the opening words of Regulation 8 disapply the Regulations from a State, not from an individual adoption, and they do so depending on the effect of the laws of the State. Secondly, there would be no point in saving the State law only in those cases in which it produced the same outcome as the Regulations. The purpose of Regulation 8 is to preserve state laws which have an effect that is similar, even though not identical, to the Regulations. In other words, where the effect of the State law is similar but not identical to the Regulations, the State law governs notwithstanding the differences. In my view, the words "for the adoption" refer not to any particular adoption, but to a hypothetical adoption.
Accordingly, in my view, Regulation 5 does not apply in New South Wales, because s 113 makes provision to comparable effect.

The application of s 113 in this case

The Korean adoption was apparently regularly obtained in Korea. Although no adoption compliance certificate is currently available, it is likely that one could be procured. Section 113 refers to the "habitual residence" of the child and of the adopting parents at the time when the adoption is granted. At least in the present context, the overseas adoption was "granted" when the Korean court made - or "granted" - the adoption order, on 12 March 2016. There appears to be no doubt that the child was, at the time the adoption order was made, habitually resident in Korea. The issue in this case is whether RCW and LMW were habitually resident in New South Wales when the Korean adoption was granted.
The presently available evidence indicates that: 1. In or about July 2015, RCW's employer offered him an attractive opportunity in Hong Kong, commencing in 2016 for a term of two to three years, with accommodation in Repulse Bay and education for LMW's child J of a previous relationship - at the International School; 2. By August 2015, RCW and LMW had decided to accept the offer, live in Hong Kong for two years, and rent their home in Hunters Hill for that period with a view to re-occupying it when they returned from Hong Kong, with J completing years 11 and 12 of his secondary education in New South Wales on their return; 3. RCW entered into a contract with his employer which provided that he would be employed in the Hong Kong position for a term of three years; 4. RCW and LMW let their Hunters Hill home on a 12-month lease; and they entered into a 2-year lease of premises which they would occupy in Hong Kong; 5. RCW, LMW and J left Australia on a one-way ticket to Hong Kong, indicating on their outgoing passenger cards that they were leaving Australia permanently. They arrived in Hong Kong on 10 January 2016; 6. On 13 January 2016, LMW made arrangements with Family and Community Services for a home visit to their new residence in Hong Kong, presumably to confirm its suitability; and 7. On 15 February the family travelled from Hong Kong to Korea, where they met the child and attended the court hearing on 18 February 2016, after which they returned to Hong Kong.
In LK v Director-General, Department of Community Services, the High Court, observing that if the term "habitual residence" is to be given meaning, the search must be for where a person resides and whether residence at that place can be described as habitual, accepted that the concept of "habitual residence" identified the centre of a person's personal and family life. [7] The High Court cited with approval [8] the decision of the New Zealand Court of Appeal in Punter v Secretary for Justice [9] that the "broad factual inquiry" required to determine whether there had been a change of habitual residence: … should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [[2005] 3 NZLR 590] held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying reality of the connection between the child and the particular state.
It is the notion of "settled purpose" that distinguishes a person who is in a country as a casual visitor or traveller (who is not a resident), [10] from one staying for a settled though temporary purpose - such as business people or service personnel on a tour of duty for a specified period, students studying at a foreign university, [11] or even a husband going to a foreign country where his wife is resident, to seek a reconciliation [12] (who is a resident).
To acquire habitual residence in a country requires physical presence for "an appreciable period of time". In Cruse v Chittum, [13] Lane J referred to a regular physical presence "which must endure for some time". In Re J (A Minor) (Abduction), [14] Lord Brandon said that to acquire an habitual residence required "an appreciable period of time and a settled intention". In Zotkiewicz v Commissioner of Police (No 2), [15] the Full Court of the Family Court said: We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an "appreciable period".
However, the period of time that a person has spent in a country is not determinative of whether the person has become habitually resident there. [16] Because 'settled purpose' is fundamental to determining 'habitual residence', residence for even a short period may suffice if coupled with the requisite 'settled purpose'. [17] What amounts to an 'appreciable period' will differ from case to case, [18] and there may even be cases in which it could be said that habitual residence has been acquired immediately. [19] In Re F (A Minor) (Child Abduction), Butler-Sloss LJ said: [20] The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time.
Most recently, in Re R (Children) (Reunite International Child Abduction Centre and others intervening), [21] the father was a French citizen living and working in France, and the mother was a British and Canadian citizen who had been born in Canada to a Scottish mother. Their two children were born in France (in 2010 and June 2013) and lived there with their parents until July 2013 when they and the mother, with the father's agreement, went to live with the mother's parents in Scotland for the duration of her maternity leave. The older child began to attend a local nursery in Scotland. The relationship broke down in November 2013. The father contended that the children were habitually resident in France. The Supreme Court held that there was no requirement that the child should have been resident in a country for a particular period of time, or that there should be an intention to reside there permanently or indefinitely; and that what was important was the stability of the residence and not whether it was of a permanent character. Lord Reed JSC, with whom Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson and Lord Hughes JJSC agreed, said that, in determining the country of habitual residence: [22] It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.
In my view, RCW and LMW had by 12 March 2016 become habitually resident in Hong Kong. Two months had passed since they had left New South Wales for Hong Kong, for the purpose of living in that country on a stable basis, albeit not permanently, for a couple of years purpose, while RCW was in regular employment there. They lived in rented accommodation in Hong Kong on a long term lease. J went to school there. It was to Hong Kong that they returned after travelling to Korea. In these respects there was a substantial degree of assimilation into the Hong Kong state. Hong Kong had become the centre of their personal and family lives, at least for two years from 10 January 2016; and New South Wales had ceased to be so. To the extent that an "appreciable period" is required to establish habitual residence, the two months which had passed since they arrived in Hong Kong satisfied it.
Accordingly, on the evidence currently available, when the Korean adoption order was made on 12 March 2016, RCW and LMW were no longer habitually resident in New South Wales. It follows that the conditions of s 113 are not satisfied. Likewise, if Regulation 5 and not s 113 governed, its conditions too would not be satisfied. The Korean adoption is therefore not recognised in New South Wales.

Notice

This application has proceeded so far ex parte. The outcome affects the status of the child, and the rights of the putative adoptive parents RCW and LMW. The Secretary has, understandably, not wished to increase their distress by embroiling them in these proceedings.
Although RCW and LMW have relinquished parental responsibility for the child, they have not relinquished legal parenthood; nor have they formally admitted that the adoption is not entitled to recognition in New South Wales. While it appears unlikely that they would wish to oppose the relief sought, I do not see how I can finally dispose of the recognition of the Korean adoption without RCW and LMW being afforded notice of the application and an opportunity to be heard. Moreover, any subsequent order would be vulnerable to being impugned for denial of procedural fairness were they not given notice.
Accordingly, I propose to determine the issue of the recognition of the Korean adoption as a preliminary question, but to direct that notice be given to RCW and LMW, and to reserve leave to them to apply within a limited time to apply to set aside the determination.

Conclusion

My conclusions may be summarised as follows:
Although the recognition of a previous overseas adoption is not a prescribed matter under Adoption Act, s 80(1), that issue can be determined as a preliminary question under UCPR r 28.2.
Regulation 5 of the Commonwealth Bilateral Arrangements Regulations does not apply in New South Wales, because Adoption Act s 113 makes provision to comparable effect.
On the evidence presently before the Court, when the Korean adoption order was made on 12 March 2016, RCW and LMW were no longer habitually resident in New South Wales, and the Korean adoption is therefore not recognised in New South Wales.
While it appears unlikely that RCW and LMW would wish to oppose the relief sought, the issue of the recognition of the Korean adoption cannot finally be disposed of without their being afforded notice of the application and an opportunity to be heard.
Subject to submissions, I propose to order that: 1. the question whether the Korean adoption is recognised in New South Wales be determined separately and before the other issues in the proceedings; 2. that question be answered in the negative; 3. notice of the application and a copy of this judgment be served on RCW and LMW; and 4. leave be reserved to RCW and LMW to apply to set aside or vary this order within 28 days of service on them.

Endnotes

(NSW) Adoption Regulation 2015, cl 89(1)(b).
(NSW) Adoption Regulation 2015, cl 89(1)(e).
Regulation 4 and Sch 1, Item 2.
The Dictionary in the (NSW) Adoption Act provides that prescribed overseas jurisdiction means an overseas jurisdiction mentioned in Schedule 1 to the Commonwealth Bilateral Arrangements Regulations.
[2006] NSWSC 1438; (2006) 206 FLR 394.
[2006] NSWSC 1438; (2006) 206 FLR 394 at [58].
(2009) 237 CLR 583 at [22], [25].
(2009) 237 CLR 583 at [44].
[2007] 1 NZLR 40.
Firebrace v Firebrace (1878) 4 PD 63.
Akbarali v Brent London Borough Council [1983] 2 AC 309.
Armytage v Armytage [1898] P 178. See also Hoy v Hoy (1906) 25 NZLR 857.
[1974] 2 All ER 940 at 942-3.
[1990] 2 AC 562 at 578-9.
(2011) FLC ¶93-472 at 85,765 [74].
Secretary, Department of Family and Community Services v Padwa (2016) FLC ¶93-701 at 81,215 [57].
Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431 at 448 [47] (Bryant CJ, Coleman and Thackray JJ); see also Cooper v Casey (1995) 18 Fam LR 433 at 435-6 (Nicholson CJ; Kay and Graham JJ agreeing); and the discussion in Davies, Bell and Brereton, Nygh's Conflict of Laws in Australia, 9th ed, pp 335-7 [13.39].
Zotkiewicz at [75].
Zotkiewicz at [77], referring to Re M (Minors) (Residence orders: jurisdiction) [1993] 1 Fam Law R 495 at 503.
[1992] 1 FLR 548 at 555.
[2016] AC 76; [2015] UKSC 35.
[2016] AC 76; [2015] UKSC 35 at [16]. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2018

(1995) 18 Fam LR 433

(2008) 39 Fam LR 431

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