Application of "PMD" [2004] NSWSC 556

1 On 24 November 2000, Bryson J (as he then was) made an order in these proceedings under s.18 Adoption of Children Act 1965 (NSW) for the adoption of the child MF (now MD), in favour of the applicant for the Adoption Order, PMD (the "Adoption Order"). 2 PMD now seeks orders correcting what she claims is an error as to the birth date of MD recorded in the Particulars of the Adoption Order. Because these proceedings were commenced prior to the coming into force of the Adoption Act 2000 (NSW), they remain subject to the Adoption of Children Act 1965 by virtue of s.212 and Schedule 3 Adoption Act 2000 . Accordingly, I have treated PMD's application as "an application to the Court under the (Adoption of Children) Act" pursuant to Pt 73 r11(1) Supreme Court Rules as they were in force before the commencement of the Adoption Act 2000 . The relief sought is not, in my opinion, of such a nature as to require the service of notice on the Director-General of the Department of Community Services in accordance with the Adoption of Children Act 1965 . Therefore, in accordance with Pt 73 r11(3), I have dealt with this application in chambers without the attendance of PMD or the Director-General. Background to present application

3 On 19 April 2000 PMD filed a Summons in this Court seeking an Adoption Order under the Adoption of Children Act in respect of the child, MD. PMD had come into contact with MD through Emmanuel Development Association ("EDA"), an adoption program that assisted in the adoption of orphaned Ethiopian children by Australian adopting parents. PMD travelled to Addis Ababa in January 1996 and met MD at the orphanage which was then caring for her. It seems that the details of MD's life, such as date and place of birth, were not clear to PMD at the time, despite her attempts to learn as much about MD as possible. MD returned to Australia with PMD in February 1996 and PMD has lived with and cared for her since then. 4 In support of her Adoption Summons, PMD swore an affidavit dated 21 February 2000 which attested to particulars of MD's identity. Annexed to that affidavit was a photocopy of MD's birth certificate, which bore the seal of the Ethiopian "Office of Region 14 Administration" . MD's date of birth was shown to be 29 September 1990. Similarly, a photocopy of MD's Ethiopian passport annexed to a later affidavit of PMD, sworn 20 May 2000, showed MD's date of birth as "1990" . 5 However, annexed to PMD's Affidavit of Application, sworn 21 February 2000, was a document that requested that MD's date of birth be changed to 29 September 1989. That request was supported by expert medical evidence which suggested that MD was "24-28 months older than her given age." 6 Bryson J accepted that evidence and granted PMD's request to vary MD's age. The Adoption Order made on 24 November 2000 recorded that MD's date of birth was 29 September 1989, not 29 September 1990. Presumably, the effect of the Adoption Order was that MD's New South Wales birth certificate records her date of birth as 29 September 1989. Evidence has since come to light, however, that has induced PMD to make this application for an order varying the Adoption Order so that MD's date of birth will be recorded as 21 May 1988.

7 In support of her application, PMD has filed an affidavit, sworn 10 June 2004, to which she has annexed the following:

i) the signed statement of MD's birth mother, dated 5 December 2003, confirming that MD's date of birth is 21 May 1988;

ii) a photograph of MD's birth mother and siblings, with an image of MD superimposed onto it, taken in approximately January 2003;

iii) a video tape of an interview of MD's birth mother conducted in Addis Ababa, Ethiopia, during which interview the birth mother states that MD's date of birth is 21 May 1988;

iv) print-outs of e-mail correspondence between PMD and an officer of EDA;

v) an X-ray report of Dr Warren Lun, dated 7 May 1998, estimating, on the basis of X-ray examination, MD's bone age at that time to be ten years; and

vi) a report of Dr Michael Thomsett, an endocrinologist, dated 26 May 1998, in which he states that MD's bone age is ten and a half years. 8 The e-mail correspondence between PMD and EDA was exchanged between approximately May 2003 and 1 September 2003. Although the evidence is not complete, it seems that shortly prior to that time EDA had located MD's birth mother in Ethiopia. In an undated e-mail message, PMD requested, amongst other things, that EDA confirm, through MD's birth mother, MD's date of birth. By its e-mail message sent on 21 May 2003, EDA informed PMD that MD's date of birth was, according to her birth mother, 21 May 1988. 9 Additionally, there is in evidence an unsigned letter written by MD herself, which explains the emotional, social and scholastic problems that the error in her date of birth is causing her. To similar effect is a further affidavit of PMD, sworn 11 June 2004. It is understandable that such uncertainty would cause anxiety in a young person, and that she and her adoptive mother should seek to resolve that uncertainty. 10 Some of this evidence would, strictly speaking, be inadmissible but the Court has a discretion to admit it under s.65 Adoption of Children Act . I propose to do so. I am satisfied from that evidence that MD's correct date of birth is 21 May 1988. I am satisfied that the erroneous date of birth recorded in the Particulars of the Adoption Order should be corrected. The question is: what power does this Court now have to correct the error?

11 Bryson J encountered a very similar situation to the present one in Application of Director General of the Department of Community Services [2004] NSWSC 44 (" Application of Director General "). In that case, adoption orders made in February 1995 recorded the birth dates of two Colombian children as those shown in records produced from Colombia, there being no reason at the time to doubt their accuracy. Subsequent bone X-rays and associated medical opinions, however, suggested that the children were each two years older than the date shown in the Colombian records and the adoption orders. The Director General applied for orders varying the adoption orders to show the correct age. 12 The Director General first submitted that Pt 20 r10 Supreme Court Rules - the "slip" rule - could be applied to make the variations sought. Pt 20 r10(1) relevantly provides: "Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 13 Bryson J did not accept that Pt 20 r10 could be applied in the circumstances. His Honour, at [11], found that what had happened in that case was "clearly not a clerical mistake" that could attract the operation of Pt 20 r10. I am of the opinion that the circumstances of the present application lead to the same conclusion and I cannot, therefore, order the variation to the Adoption Order sought by PMD under Pt 20 r10. 14 Bryson J did, however, accept the Director General's submission that Pt 40 r9(4) Supreme Court Rules gave the Court power to make the variation sought. Sub-rules (1), (2) and (3) set out powers that were not relevant in that case, nor are they relevant to the present application. Pt 40 r 9(4), however, relevantly provides: "In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any question (whether of fact or law or both) arising under any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief." 15 In Application of Director General the only reservation that Bryson J had about the application of Pt 40 r9(4) to that case was that the original adoption orders might be taken to have determined a question of fact (the children's dates of birth) which arose under the claim for relief (the claim for adoption orders) such that the exception to sub-rule (4) applied, thereby negating the Court's power to order the variation sought. His Honour, however, held, at [14], that: "In my view it should not be held that, within the meaning of subrule (4), the statement of birth date in each order determined any question arising on any claim for relief. The birth dates were not in question; they were included essentially for the purpose of identification, not for the purpose of deciding or disposing of any issue."

His Honour went on to order that the adoption orders in question be varied in respect of the dates of birth of the children shown in the particulars, pursuant to Pt 40 r9(4). 16 I respectfully adopt his Honour's reasoning. In this matter, the evidence available at the time of the making of the Adoption Order included MD's Ethiopian passport and birth certificate which gave her birth date as 1990. In a sense, that evidence was contradicted by the medical evidence adduced by PMD indicating that MD was in fact born earlier than 1990. Unlike the situation which existed at the time of the adoption orders which were made in Application of Director General , here his Honour, in determining MD's adoption application, had to decide whether or not to accept the medical evidence and to show in the adoption order a date other than that shown on her Ethiopian birth certificate. 17 However, there was no contest about MD's correct birth date and it was unnecessary to decide what was the correct birth date for the purposes of dealing with the adoption application. All that his Honour had to do was decide whether MD would be more accurately described in the Adoption Order by showing as her birth date a date suggested by the medical evidence. As was the case in Application of Director General , the birth date of MD does not seem to me to have been necessary to Bryson J's decision to make the Adoption Order, the result being that the exception to the power in Pt 40 r9(4) has no application. 18 In my opinion there is power under Pt 40 r9(4) Supreme Court Rules to vary the Adoption Order so that it will now record MD's correct date of birth, namely, 21 May 1988. As well, I intend, pursuant to s.19 Births, Deaths and Marriages Registration Act 1995 (NSW), to order that the Registrar of the Register of Births, Deaths and Marriages vary MD's birth date as registrable information within the meaning of that Act in accordance with my variation of the Adoption Order. 19 As did Bryson J in Application of Director General , I have released this judgment for publication because it may assist the profession in what is likely to be a not infrequent problem in practice in overseas adoptions from certain countries. No authority is granted for the release or disclosure of any other information from the Court file to any person not a party to these proceedings.

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