Application of MGO and AAO; re LDC [2011] NSWSC 951

Judgment 1The applicants MGO and AAO apply for an adoption order in respect of the child LDC. The evidence appears to demonstrate that the applicants are in every way fit and proper adoptive parents, and that it would be in the interest of the child to make an adoption order. However, there are - as has become too frequently the case in inter-country adoption applications - non-compliances with mandatory procedural requirements, the effect of which is to preclude the Court from making an order at this stage. 2The child was, until placed with applicants for the purposes of adoption, habitually resident in the Philippines; the applicants are habitually resident in Australia. The Philippines is a convention country for the purposes of the Hague Convention on Intercountry Adoption . In such circumstances, the application must proceed under the (CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 , regulation 15, and not under the (NSW) Adoption Act 2000 [ Re S and the Adoption Act 2000 (NSW) (No 2) (2006) 68 NSWLR 467]. Although initially the present application was made under the (NSW) Adoption Act , that has now been corrected, and the applicants rightly now rely on the (CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations, regulation 15. 3However, the evidence filed in support of the application does not address the requirements of regulation 15, which provides as follows: 15 Adoption in Australia of a child from a Convention country (1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with: (a) the Convention; and (b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and (c) the laws of the Convention country. (2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons. (2A) The application must: (a) be in accordance with Form 3; and (b) include an affidavit in accordance with Form 2. (2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State: (a) if the application is made by 1 applicant - where the applicant habitually resides; or (b) if the application is made by more than 1 applicant - where the applicants habitually reside. (2C) The State Central Authority: (a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the Authority wishes to rely in support of the court making an order other than the order sought in the application; and (b) must include with that statement an affidavit in accordance with Form 2. (2D) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to a statement filed under subregulation (2C), being a reply that: (a) is in accordance with Form 6; and (b) includes an affidavit in accordance with Form 2. (2E) An order made by the court must be in accordance with Form 8. (3) The court may make the order only if it is satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child; and (b) the State Central Authority of the State in which the applicant or applicants habitually reside has agreed to the adoption of the child; and (c) the child is allowed to reside permanently in Australia. (4) However, the court must not make the order if the child is not in Australia. (5) For paragraph (3) (c), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so residing. Note 1 This regulation does not necessarily apply to all States - see regulation 34. Note 2 If a child to whom an application relates enters Australia before the application is determined, the child may be subject, while the application is being considered, to the Immigration (Guardianship of Children) Act 1946. Legislation of the State in which an application is made may also have consequences for the child concerned. 4An application under Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations thus requires evidence that establishes the following matters [see Re S, [74]-[79]]. 5First, that for the purposes of the Regulation, the child was habitually resident in a Convention country when the Convention was invoked (leading to permission being given for the child to leave his or her State of origin and to enter and reside permanently in the receiving State) [Regulation 15(1)]. I am satisfied that the child was, for relevant purposes, habitually resident in the Philippines. 6Secondly, that the prospective adoptive parents are persons who are habitually resident in Australia [regulation 15(1)]. I am satisfied that the applicants are habitually resident in Australia. 7Thirdly, that the arrangements for the adoption were made in accordance with the Convention [regulation 15(1)(a)]. Relevantly, that requires that the Department (as NSW Central Authority) prepare and supply to the Inter-Country Adoption Board of the Philippines (as the Central Authority of the State of Origin) the report required by Article 15 of the Convention; and that the Inter-Country Adoption Board of the Philippines as Central Authority for that State prepare and transmit to the NSW Central Authority a report in conformity with Article 16 of the Convention. There is no evidence before the Court to establish these matters. 8Fourthly, that the arrangements for the adoption were made in accordance with the laws of New South Wales so far as they relate to the adoption of children from a Convention country [regulation 15(1)(b)]. I am satisfied that the adoptive parents were selected in accordance with the procedures prescribed by the Adoption Act and the Adoption Regulations . 9Fifthly, that the arrangements for adoption were made in accordance with the laws of the Philippines [regulation 15(1)(c)]. There is in evidence a judgment of the Regional Trial Court of the National Capital Judicial region committing the child to the care and custody of the Filipino Department of Social Welfare and Development, to act as her legal guardian, and conferring on that Department authority to give consent to her placement, guardianship and adoption, and I would be prepared to accept this as sufficient evidence that the arrangements were made in accordance with the laws of the Philippines. 10Sixthly, that notice of the application has been given to the NSW Central Authority [regulation 15(2B)]. In this case, I would be prepared to infer that such notice has been given, from the filing of an affidavit by the A/Director, Adoption and Permanent Care Services, but ordinarily this should be formally proved. 11Seventhly, that the Inter-Country Adoption Board for the Philippines, a Central Authority of that country, has agreed to the adoption of the child [regulation 15(3)(a)]. There is no evidence of this matter. The only reference is an indirect one in the Assessor's Report, that the applicants "have been approved to adopt a child from the Philippines by both the New South Wales Department of Human Services (Community Services) and the Inter-Country Adoption Board of the Philippines". This does not begin to establish that the Inter-Country Adoption Board of the Philippines has agreed to the adoption of the child. There must presumably be some document recording the agreement of that Board to the adoption. 12Eighthly, that the NSW Department has agreed to the adoption of the child [regulation 15(3)(b)]. I am satisfied of this matter. 13Ninthly, that the child is allowed to reside permanently in Australia [regulation 15(3)(c)]. I am satisfied of this matter. 14Tenthly, that the child is in Australia [regulation 15(4)]. I am satisfied of this matter. 15Accordingly, although it otherwise appears appropriate to make an adoption order, the Court is unable to do so until evidence is adduced: (a) that the arrangements for the adoption were made in accordance with the Convention, and in particular that the Department (as NSW Central Authority) prepared and supplied to the Inter-Country Adoption Board of the Philippines (as the Central Authority of the State of Origin) the report required by Article 15 of the Convention; and that the Inter-Country Adoption Board of the Philippines as Central Authority for that State prepared and transmitted to the NSW Central Authority a report in conformity with Article 16 of the Convention; and (b) that the Inter-Country Adoption Board for the Philippines, as Central Authority of that country, has agreed to the adoption of the child. 16I adjourn the application to a date to be fixed by arrangement with my Associate. I direct that the Registrar notify the applicants and the Director-General of this order and provide to them a copy of this judgment.