Application ADC & AMC; re HAC [2013] NSWSC 565

Judgment 1HIS HONOUR: This adoption application is made by ADC and his wife AMC in respect of a child HAC, who was born in Ethiopia on 17 October 2006. 2The child was born to a single mother SK who was in difficult circumstances and was reportedly terminally ill and relinquished the child to an orphanage at two and a half years of age. 3On 6 January 2010, the Ministry of Women's Affairs in the Federal Democratic Republic of Ethiopia approved the applicants to adopt the child. On 27 January 2010, Kunkeet Children's Center (which was raising the child) and the applicants entered into a contract of adoption in accordance with Ethiopian law in respect of the child, which was expressed to be of no effect unless approved by the court. 4On 25 March 2010, the Federal First Instance Court of the Federal Democratic Republic of Ethiopia at Addis Ababa, on the application of Kunkeet Children's Center and the applicants, approved the adoption agreement. It required the birth mother to appear before the court to give her views; and she explained that, due to her economic problems, she had given her consent to the adoption agreement. 5A post-adoptive Ethiopian birth certificate issued showing the applicants as the child's parents. It appears from the contract of adoption and judgment of the Ethiopian court that an adoption under Ethiopian law has the same substantive effect as an adoption under our law. 6The applicants travelled to Ethiopia, where they arrived on 23 April 2010. On 24 April 2010, the child was placed in their care. After spending some time with SK, on 16 May 2010 they left Ethiopia, returning to Australia with the child on 18 May 2010. 7By their summons, the applicants seek an adoption order, a consent dispense order in respect of the child's natural father and mother, and an order dispensing with notice to the natural father and mother. 8Ethiopia is not a party to the Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption. Accordingly, it is not open to proceed by way of recognising the Ethiopian adoption under (NSW) Adoption Act 2000, s 108. Nor is Ethiopia a prescribed overseas jurisdiction under the (CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998, so it is not open to recognise the Ethiopian adoption under Adoption Act, s 113. 9Adoption Act, s 116, gives recognition to overseas adoptions in countries other than Convention countries or prescribed overseas jurisdictions, where the adoption is in accordance with and has not been rescinded under the law of that country, and the adoption has the same substantive effect as an adoption in this country, unless a court refuses to recognise it, if at the time at which the relevant legal steps resulting in the adoption were commenced, the adoptive parents had been resident in that country for twelve months or more, or were domiciled in that country. In this case that is not available, as the applicants had not been resident in Ethiopia for twelve months, nor were domiciled there, when the adoption application in that country was instituted. Accordingly, this court cannot make a declaration of validity under Adoption Act, s 117. It is for that reason that, notwithstanding that they have obtained, apparently regularly, an adoption order in Ethiopia, the applicants must also seek an order for adoption in this State. 10The evidence establishes that the applicants are in all relevant respects suitable adopting parents. The assessor recommends that the adoption proceed. The Director, Adoption and Permanent Care Services, Department of Family and Community Services, supports that recommendation and, as delegate of the Commonwealth Minister for Immigration, who is presently the guardian of the child as a non-citizen child within the meaning of (CTH) Immigration (Guardianship of Children) Act 1946, s 4AAA, consents to the adoption and has executed an order under s 11 of the Commonwealth Act, which upon an adoption order being made, will exempt the child from the provisions of the Commonwealth Act. Because this is an inter-country adoption, the consent of the Director-General is not required [Adoption Act, s 87(2)(b)]. 11For the purposes of s 90, I am satisfied that the best interests of the child will be promoted by the adoption; that as far as practicable and having regard to his age and understanding, the child's wishes and feelings have been ascertained and due consideration given to them; that the prospective adoptive parents have been selected in accordance with the Act; that the applicable requirements of the Act and other relevant laws in respect of inter-country adoptions have been satisfied; and that the culture and language of the child and his given names, identity, and religious ties have been taken into account. 12The applicants seek an order approving as the child's name HKSC. K is the name of the child's maternal grandfather, and S is the first name of his birth mother; both are important to the child who has asked that they be included in his name. His current middle name A was given to him upon allocation in Ethiopia and is the first applicant's first name. The applicants wish the child to retain birth family names. I conclude that upon adoption the child is to have the surname C and the given names HKS. In agreeing to the proposal to change the names of the child, I have considered the wishes expressed by the child, and given weight to them. I am satisfied that the change in the given names of the child is in the best interests of the child, and is not inconsistent with the principle referred to in s 8 that a child's given names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved. 13Section 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. 14Section 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). 15Section 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. 16Sections 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. 17Section 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. 18The 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. 19The child's natural father is unknown, and appears to be unknown in the Ethiopian records. I am satisfied that he cannot be identified or found, and that his consent should be dispensed with pursuant to s 67(1)(a). 20The natural mother, however, is not unknown. As has been observed, she was called before the Ethiopian court, where she gave consent to the adoption. However, she has not given consent in accordance with (NSW) Adoption Act, Pt 5. 21The applicants seek an order dispensing with her consent and with notice of the application to her. However, for the purposes of Adoption Act, s 67(1)(a), I am not satisfied that the natural mother cannot be found or identified. She is known, and appeared in the Ethiopian court. Moreover, the applicants spent some time with her in Ethiopia, and feeling compassion for her circumstances established a bank account for her to provide some financial support to help relieve her poverty. When the difficulty concerning the absence of her consent emerged, the Court caused an inquiry to be made by the Department as to whether it was known if she were still alive (given the evidence that she was terminally ill), and the Court was informed that she was still alive. For the purpose of s 67(1)(b), there is no evidence that she is in such a physical or mental condition as not to be capable of properly considering the question of whether she should give consent. For the purpose of s 67(1)(c), there is not at this stage any evidence to suggest any serious cause for concern for the welfare of the child. For the purposes of s 67(1)(d), an "authorised carer" is defined as any person who has care and responsibility for a child under out-of-home care arrangements made under the (NSW) Children and Young Persons (Care and Protection) Act 1998, or has responsibility for the day-to-day care, welfare and development of the child under (CTH) Family Law Act 1975. The applicants do not fall within that definition, so s 67(1)(d) is not available. 22Nor (by s 72) can the court make a consent dispense order unless notice of the application has been given to the person whose consent is sought to be dispensed with at least fourteen days before the order is made, unless: (a) the person cannot, after reasonable inquiry, be found or identified. For reasons already explained, this is not established; 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 and his or her physical or mental welfare would, in the opinion of the Court, be detrimentally affected if he or she were to receive notice of the application. Again, this is not established; or (c) the Court considers that in the particular circumstances of the case it is desirable to make an order without notice of the application having been given. If some proper basis for a consent dispense order were identified, I would not hesitate to dispense with notice of the application for that order to the birth mother, under s 72(1)(c), given the particular circumstances of the case including that she had already expressed consent, in the Ethiopian court. 23I have previously highlighted these difficulties, in Application of JGP & ASP, Re AJP [2011] NSWSC 151 (a closely similar Ethiopian case) and Application of MSC and CJC; re HES [2011] NSWSC 950. 24I would therefore be prepared to dispense with the consent of the child's natural father and with notice of the application to him; to approve as the child's names upon adoption HKSC, and - subject to the natural mother's consent, or dispensing with it - to make an adoption order. Given the evidence that the birth mother gave consent under Ethiopian 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. Accordingly, as I cannot at this stage make a consent dispense order, I am unable to make an adoption order. 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. 25I will therefore adjourn the proceedings to a date to be fixed by arrangement with the applicants, to permit them to make submissions and adduce further evidence, either in support of a consent dispense order, or of the giving of consent in accordance with the Act. 26If 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.