Director-General, Department of Community Services v The Adoptive Parents

Supreme Court of NSW|2013-10-18|Before: Darke J

Judgment 1This is an adoption application made by a married couple, RJC and ARC ("the applicants"), with respect to a child GWL, who was born in Taiwan on 28 October 2011. GWL is a non-citizen child within the meaning of s 4AAA of the Commonwealth Immigration (Guardianship of Children) Act 1946 (Cth). GWL is thus under the guardianship of the Minister for Immigration ("the Minister"). The Acting Director of Adoption and Permanent Care Services within the Department of Family and Community Services, who is the relevant delegate of the Minister, has consented to the adoption of GWL by the applicants. The Acting Director is also a delegate of the Director-General of the Department.

Background 2The applicants are both of Anglo-Celtic background. They were married in 2006, and do not have any biological children or any other adopted children. 3The child's history is set out in the report (required by s 91(1) of the Adoption Act 2000) annexed to the Acting Director's affidavit sworn 21 August 2013. The report records that his mother, SCL, "was abandoned as a child and has had a difficult life". After GWL was born, SCL received some form of counselling and agreed to give him up to inter-country adoption as "she could not care for a baby and did not want her child to be adopted locally". SCL did not identify GWL's father. GWL was placed with the Christian Salvation Service ("CSS"), an agency approved by the Taiwanese government to carry out inter-country adoptions. 4In June 2011, the applicants lodged an application to adopt a child from overseas (preferably, from Taiwan). This application was approved and a confidential home report concerning the applicants' circumstances was forwarded to CSS. In January 2012, the applicants completed various adoption papers with respect to GWL, which the Department forwarded to CSS. 5On 5 April 2012, the Taipei District Court made a ruling approving the adoption of GWL by the applicants, after a hearing at which SCL appeared (and, it seems, gave evidence). This ruling was verified by a certificate issued by the same court on 24 April. In May 2012, the applicants travelled to Taiwan and spent about one week in the country, during which time CSS placed GWL in their care. The applicants returned to Australia with GWL on 30 May 2012. They have been living together since that time in Sydney. 6By summons filed on 2 May 2013, the applicants seek an order for the adoption of GWL, and orders dispensing with the need to give notice to, and obtain the consent of, the natural parents of GWL. The applicants also seek an order approving a change of name, so that GWL will be named "GWZC".

Overseas adoption orders 7Overseas adoption orders may be recognised in New South Wales in a number of ways. This Court can recognise as effective an adoption order made in a country that is party to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption ("the Hague Convention") with respect to a child habitually resident in that country: Adoption Act 2000 s 108. The Court can also recognise adoptions effected in a country that is a prescribed overseas jurisdiction within the Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998 (Cth): Adoption Act 2000 s 113. Lastly, the Court can recognise, and declare the validity of, an adoption effected in accordance with the laws of a foreign country in circumstances where the adoptive parents were domiciled, or resident for at least twelve months, in the foreign country: Adoption Act 2000 ss 116, 117. 8None of these avenues are open in the instant case. Taiwan is not a party to the Hague Convention; nor is it a prescribed overseas jurisdiction with which this country has a bilateral arrangement. The applicants in this case were neither domiciled nor resident in Taiwan at the time they began to take the legal steps necessary to adopt GWL under Taiwanese law. Accordingly, these proceedings are in the nature of an application for a fresh adoption order under the law of this State: see Appln MKL & MJL; Re YSL [2013] NSWSC 564 at [6]-[7] per Brereton J.

Order for adoption 9In this case, the Court cannot make such an adoption order unless satisfied of the following relevant factors (under s 90 of the Adoption Act 2000 ("the Act")): (a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and ... (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child - that the prospective adoptive parent or parents have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and ... (g) if the child is a non-citizen child from a Convention country or other country outside Australia - that the applicable requirements of this Act and any other relevant law have been satisfied, and ... (h) in the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. 10No adoption plan has been made in this case. Section 8 of the Act outlines the principles to be applied when making decisions about the adoption of a child. The best interests of the child are expressed to be the paramount consideration: Adoption Act 2000 s 8(1). Factors to be taken into account when assessing what is in the best interests of the child include, but are not limited to: the child's age, gender, background and other characteristics; the child's physical, emotional and educational needs (including the child's sense of personal, family and cultural identity); the attitude of the proposed adoptive parent(s) to parenthood; and the suitability of the proposed adoptive parent(s) to provide for the needs of the child: Adoption Act 2000 s 8(2). 11I am satisfied that, taking into account the considerations set out above, an adoption order is in the best interests of GWL. The evidence establishes that ARC and RJC are suitable adopting parents in every relevant respect. The assessor's report annexed to the Acting Director's affidavit describes the placement as "extremely successful and settled" and recommends that the adoption be finalised. GWL is progressing very well intellectually and socially, and has developed a strong attachment to the applicants. The applicants are also sensitive to the need to nurture GWL's cultural identity. 12I am also satisfied that the applicants have been selected in accordance with the Act and that the applicable requirements of the Act and any other relevant law have been complied with. I am further satisfied that the child's wishes and feelings have been taken into account as far as practicable in view of his young age. 13The only remaining issue in relation to whether to make an adoption order is whether "consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with". 14In the absence of a "consent dispense order", the Act requires consent on the part of each person who is a parent of the child, or who has parental responsibility for the child: ss 52, 54. As stated earlier, the delegate to the Minister for Immigration, the guardian of the child, has consented to his adoption by the applicants. However, absent consent dispense orders, the consent of the child's natural mother and father is also required: see Re KSE & The Adoption Act 2000 [2006] NSWSC 92 at [9] per Brereton J. 15To be effective, consent must be fully informed and given in accordance with the Act: s 58. The Act prescribes when consent can be given, the form in which consent must be given, and what information the person giving consent must receive: ss 59 to 62. The Act also requires the person giving consent to be counselled, and a person independent of the counsellor to witness the consent: ss 62 and 63. In light of this, notwithstanding that SCL has evidently consented to the adoption of GWL under the law of Taiwan, her consent was not obtained in accordance with the New South Wales Act. No consent was given by the father of the child. Accordingly, the applicants have applied for an order dispensing with the requirement for consent of each of the parents. It is apparent that the Acting Director is aware of that application, and may be taken to consent to the making of it (see s68(d) of the Act). 16Section 67 sets out the circumstances in which it is permissible for the Court to dispense with the requirement for consent: 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. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. 17Section 67(1)(d) is inapplicable to the current circumstances, and there is no evidence to suggest that the factors in ss 67(1)(b) and/or (c) are made out. Accordingly, it must be demonstrated that each of GWL's parents "cannot, after reasonable inquiry, be found or identified" and that dispensation is in the child's best interests: ss 67(1)(a), (2). 18From the evidence before the Court it is clear that the identity and whereabouts of the father of GWL is unknown. His identity was not provided by SCL, and it does not appear on the child's birth certificate. There is no realistic possibility of the father being found. In all the circumstances I am satisfied that no further inquiry as to the identity or whereabouts of GWL's father is reasonably required. Accordingly, GWL's father is in my view a person who cannot, after reasonable inquiry, be found or identified within the meaning of s 67(1)(a) of the Act. I am further satisfied that it is in the best interests of the child that a consent dispense order be made in respect of GWL's father. 19By contrast, the identity of GWL's mother is known, and there is a realistic possibility that she could be found. SCL appeared in the adoption proceedings before the District Court of Taiwan. An address for her appears on the child's birth certificate, although other material suggests that SCL has an unstable lifestyle and changes address relatively frequently. 20These circumstances do not necessarily preclude an order dispensing with the need to obtain the consent of SCL under the NSW Act. The Court must consider the question of whether there has been "reasonable inquiry" from the perspective of both the applicants and SCL: Re K and the Adoption Act 2000 [2005] NSWSC 858 at [22] per White J; In the matter of N and the Adoption Act 2000 [2012] NSWSC 1263 at [5] per Black J. 21In Re KSE and the Adoption Act 2000 [2006] NSWSC 92 Brereton J stated (at [11]) that the fact that a mother, thinking that she could not provide a proper environment for a baby relinquished the child for adoption, was "highly relevant" in considering whether further inquiries would be "reasonable". 22The Acting Director has sought to obtain information in relation to making contact with GWL's parents. Annexed to the Acting Director's affidavit is a letter dated 28 June 2013 from her to Mrs Paula Voigtmann, the executive director of CSS. It was stated in the letter that: Currently, under New South Wales law, the Supreme Court is unable to rely upon the consent given by the birth mother in Taiwan. In some circumstances, under New South Wales law the Supreme Court can dispense with the requirement for a birth parent to consent to adoption, such as, if that birth parent cannot, after reasonable inquires, be found or identified. Information was requested in response to the following questions: 1. Is CSS in contact with the birth mother and/or birth father? 2. When did CSS last have contact with the birth mother and/or birth father? 3. Does CSS have current contact details for the birth mother and/or birth father? 4. Is there any other relevant information about contact with the birth mother and/or father that the Court should be aware of e.g. contact between the adoptive parents and the birth parents? 5. Given that an adoption order has been made in Taiwan, will CSS contact the birth mother and/or birth father? 23Mrs Voigtmann responded by a letter dated 10 July 2013, also annexed to the affidavit of the Acting Director: In the above case, a full and final adoption order has been issued from the Court in Taiwan. The mother's consent was verified by the court both in writing and by personal appearance before the court. There is no question that the legal guardian/guardians of any child legally adopted through our agency have satisfied the District Court Family Division judges of their consent. The District Court is also able to determine by independent investigation both the need for adoption, and the suitability of the adoptive parents. Christian Salvation Service is concerned that after a full and final adoption in Taiwan, issuance of an Australian Immigrant Visa, and a year of post adoption follow-up by your government, we would receive a letter from your department stating "the Supreme Court is unable to rely upon the consent given by the birth mother in Taiwan." As I have previously stated, CSS is not in a position to contact a former legal guardian of a child regarding new or additional consent as under Taiwan law they have no legal authority regarding the child from the date of the Taiwan adoption. CSS hopes that this legal issue can be resolved in NSW since other states and certain other cases within NSW have no difficulty in issuing the Finalization [sic] of Adoption Order. (Emphasis in original.) 24The Department appears to have made a similar request of CSS, and received a similar response, at least once before: see In the matter of N and the Adoption Act 2000 [2012] NSWSC 1263 at [7]. 25In one sense, it is true that this Court is "unable to rely" on the consent of the birth mother under Taiwanese law. However, this is not because the consent as ascertained by the District Court of Taiwan is considered to be in any way unreliable. Rather, consent under Taiwanese law is not consent "in accordance with" the New South Wales Act, which is what is required in proceedings such as these, concerning a fresh adoption application and not the recognition or finalisation of an existing order. 26Nevertheless, Mrs Voigtmann's letter makes it clear that CSS did not regard itself as being in a position to contact SCL who, under Taiwanese law, no longer has any authority in respect of GWL. As to the possibility of attempting to contact GWL's mother independently of CSS, the Acting Director deposes that: It is important for Community Services to maintain a good working relationship with CSS. If Community Services was to ignore the protocol which CSS has set out in their reply and attempt to contact the birth mother independently of CSS, I am concerned that this would impact upon the goodwill between Community Services and CSS which has been established over many years, and that it would jeopardise any ongoing working relationship with CSS. 27The present case bears a close similarity to In the matter of N and the Adoption Act 2000 (supra). Black J stated at [8]: In this case, it is theoretically possible that the adopting parents could, by making further private inquiries, locate the birth mother. I do not think that it is reasonable that they be required to do so in circumstances that the Department does not consider it appropriate for it to take steps to do so, given the concerns that it has identified as to potential prejudice to its continuing relationship with the Agency. I am therefore satisfied that it would not be reasonable to require further inquiry to be made in respect of the birth mother and that, whatever the previous situation, she cannot now after reasonable inquiry be found. I am also satisfied that it is in the interests of N that a consent dispense order in respect of the birth mother be made. 28The only realistic method by which the applicants could contact SCL is through CSS, and it has shown that it would not be willing to assist. I do not think that it would be reasonable to require the applicants to make such an inquiry, or to attempt any other inquiries of their own. In all the circumstances, including those concerning the placement of GWL for inter-country adoption, I am satisfied that no further inquiry (whether by the Department, the applicants, or otherwise) as to the whereabouts of SCL would be reasonable. Accordingly, SCL is in my view a person who cannot, after reasonable inquiry, be found or identified within the meaning of s 67(1)(a) of the Act. I am further satisfied that it is in the best interests of the child that a consent dispense order be made in respect of SCL. 29By reason of s 72(2)(a) of the Act it is not necessary to give notice to either of GWL's parents of the application for consent dispense orders. Accordingly, I make orders dispensing with the requirement of consent with respect to both of GWL's parents pursuant to s 67(1)(a) of the Act. 30Section 88(1)(a) of the Act provides that the Court may not make an adoption order in the absence of at least 14 days' notice being given to each person whose consent "is required under this Act and has not been given (or the requirement for which has been dispensed with by the Court), ...". Essentially for the reasons given above in relation to the consent dispense orders made pursuant to s 67(1)(a), I also dispense with any need for notice to be given pursuant to s 88 to GWL's parents (see s 88(4)). 31For the above reasons, I make an order for the adoption of the child by RJC and ARC.

Change of name 32On the making of an adoption order, a child of less than 18 years of age 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": s 101(1). The applicants propose that the child have as his surname, their surname "C" instead of his present surname "L", and that his given names be his existing Taiwanese name "GW" along with the additional name "Z", so that his full name will be "GWZC". The Acting Director expresses no opinion regarding the change of name. 33With respect to changing the child's surname, the Act merely requires that the Court consider any wishes expressed by the child and any factors (including the child's maturity and level of understanding) the Court considers relevant to the weight it should give to these wishes: s 101(2). No such wishes have been expressed by GWL, who is just under two years old. The Act also provides that if, before the making of an adoption order, the child has been generally known by a particular surname, the Court may order that the child is to have this name as his or her surname: s 101(3). There is some evidence that GWL is known to the applicants as GWZC. In any case, I am satisfied that changing the child's surname from "L" to "C", the surname of the applicants, is in the child's best interests, which is the paramount consideration in decisions regarding the adoption of a child: s 8(1)(a). 34The Act prohibits the Court from approving a change in the child's given name(s) unless it is satisfied that to do so is in the child's best interests: s 101(5). For these purposes, the addition of a further given name amounts to a change of name: Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385 at [39]-[41]; Re KSE & The Adoption Act 2000 [2006] NSWSC 92 at [17]. 35Prior to 1 January 2009, s 101(5) of the Act required applicants to demonstrate the existence of "special reasons, related to the best interests of the child" before the Court could approve a change of given name. The rationale for this was discussed at length by Barrett J (as his Honour then was) in Application of RM and ESM - Child: Y [2004] NSWSC 937; (2004) 62 NSWLR 465. Essentially, the provision was designed to recognise, consistently with Australia's international obligations, a child's right to maintain his or her identity, of which his or her name and nationality form an integral part. In light of the drastic changes faced by children the subject of inter-country adoptions, it was considered that name changes should only occur as an exceptional matter and where it was in the best interests of the child. 36Section 101(5) was amended by Sch 1 [20] of the Adoption Amendment Act 2008 to omit the need for "special reasons". The sub-section now provides that: (5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child. 37The best interests of the child are to be ascertained by reference to the factors and principles outlined in s 8 of the Act. In Re Application of H and H, child JW [2011] NSWSC 93; (2011) 45 Fam LR 681 at [40] 688, Hallen AsJ (as his Honour then was) considered that, in approaching the question of what is in the best interests of the child, the Court should "weigh, and balance, the factors that are relevant, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have." He continued (at [41] 688): Importantly, the focus is on the best interests of the child, not the interests of the applicants as the adoptive parents. This does not mean that their legitimate interests and desires, or their views on what is in the best interest of the child, should be ignored. However, the touchstone for the court's ultimate decision on whether to permit the change of a given name, remains the best interests of the child. 38GWL is too young to express his wishes on the subject, being just under two years old (cf. ss 8(1)(d), (2)(a) and 101(2)). This is not to say that he has not formed an attachment to his existing name: see Application of RM and ESM - Child: Y [2004] NSWSC 937; (2004) 62 NSWLR 465 at [16] 469. 39An affidavit of special reasons, sworn jointly by the applicants on 29 April 2013, indicates that the name "Z" is of special significance to them. The applicants also state: "Our son has two names because he has two sets of parents. He is both of these names because they are a part of his story which includes all of us." While the sentiments expressed by the applicants in the affidavit are natural and legitimate, their wishes are relevant only insofar as they bear on the question of the best interests of the child. 40In my view, the change to the child's given names, as desired by the applicants, is in the best interests of the child. It involves the addition of a name of biblical origin to the child's existing given names which reflect his Asian cultural heritage. It has been recognised that the addition of a European given name, in circumstances where the original forename is retained, may be "a matter of convenience and benefit" to a child growing up in the Australian community: In the matter of N and the Adoption Act 2000 [2012] NSWSC 1263 at [10]; Application of MSC and CJC; re HES [2011] NSWSC 1071 at [11] and [15]. The same can be said about the name "Z". Moreover, the additional name does not in my view detract from the child's given names of Asiatic origin, which are to be retained. The retention of GWL's given name as his first forename provides an "appropriate and symbolic acknowledgment and recognition of his culture of origin": Application of MSC and CJC; re HES, supra, at [15]. The name "GWZC" adequately preserves the child's cultural identity, while adding a second forename that is likely to be of some benefit to the child in the future. 41In addition, I think that having a given name, thoughtfully selected by the adoptive parents, is itself a factor likely to maintain and promote good family relationships between the child and his adoptive parents. 42I am satisfied that a change of name is in the best interests of the child, and accordingly approve the name "GWZC" as chosen by the applicants.

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: 22 October 2013

Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998(Cth)

(2011) 45 Fam LR 681

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