LK v Director-General, Department of Community Services

Supreme Court of NSW|2023-11-15|Before: Stevenson J

JUDGMENT

In 2021, the plaintiff, Ms Jane Smith (not her real name) adopted a child, Sophie (not her real name), in Rwanda under Rwandan law, implementing the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the "Convention").
That adoption is recognised under Australian law. [1]
Sophie, who is almost eight, now resides with Ms Smith in New South Wales and has a permanent visa to enter and remain in Australia.
Sophie wishes, in due course, to apply for Australian citizenship. It is a legal precondition of Sophie's eligibility for Australian citizenship that the legal relationship between Sophie and her pre-adoption parents be terminated. [2]
Rwandan law does not provide that, in the circumstances of this case, the adoption terminated the legal relationship between Sophie and her biological, pre-adoption parents.
For that reason, by Summons filed on 5 September 2023, Ms Smith seeks an order under Australian law to terminate the legal relationship between Sophie and her pre-adoption parents.
Ms Smith seeks this order under reg 20 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (the "Regulations").
On 15 November 2023, I made the following orders: 1. in accordance with reg 20, on application by Ms Smith, that the adoption of the child Sophie by the applicant terminates the legal relationship between the pre-adoption parents of that child and the child; 2. approving the following forenames as the forenames of the child: SOPHIE xxx 1. approving the following surname as the surname of the child: SMITH

Does reg 20 apply?

Regulation 20 provides: "(1) This regulation applies if: (a) an adoption, by a person who is habitually resident in Australia, of a child who is habitually resident in a Convention country is granted in that country; and (b) the laws of the Convention country do not provide that the adoption of the child terminates the legal relationship between the child and the individuals who were, immediately before the adoption, the child's parents (the pre-adoption parents). (2) The person may apply to a court for an order that the adoption of the child terminates the legal relationship between the child and the pre-adoption parents … (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: [3] … where the applicant habitually resides; (2C) As soon as practicable, the State Central Authority must give notice … of the application to the Minister for Immigration and Multicultural Affairs at the principal office of the Department of Immigration and Multicultural Affairs in Canberra. (2D) The Minister for Immigration and Multicultural Affairs … no later than 5 working days before the court hearing, may file with the court a statement … that sets out briefly the matters on which the Minister wishes to rely in support of the court making an order other than the order sought in the application … (3) The court may make the order only if it is satisfied that: (a) an adoption compliance certificate issued in the Convention country is in force for the adoption; and (b) the laws of the Convention country do not provide that the adoption of a child terminates the legal relationship between the child and the pre-adoption parents; and (c) the child is allowed: (i) to enter Australia; and (ii) to reside permanently in Australia."
Regulation 34 provides: "34 Application (1) A provision of these 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, except for this regulation, have for the State."
Section 111 of the Adoption Act 2000 (NSW) (the "Act") also empowers this Court to make an order that an adoption terminates the legal relationship between a child and the child's pre-adoption parents.
Section 111 provides: "111 Order terminating legal relationship between child and parents (1) This section applies if - (a) an adoption, by an adoptive parent who is habitually resident in the State, of a child who is habitually resident in a Convention country is granted in that country, and (b) the law of the Convention country does not provide that the adoption of the child terminates the legal relationship between the child and the individual or individuals who were, immediately before the adoption, the child's parent or parents (the pre-adoption parents). (2) The Secretary may, on behalf of an adoptive parent, apply to the Court for an order that the adoption of the child terminates the legal relationship between the child and the pre-adoption parents. Note - See articles 26 and 27 of the Convention. (3) The Secretary must given written notice of the application to the Central Authority of the Convention country concerned. (4) The Court may make the order only if satisfied that - (a) an adoption compliance certificate issued in the Convention country is in force for the adoption, and (b) the law of the Convention country does not provide that the adoption of the child terminates the legal relationship between the child and the pre-adoption parents, and (c) the child is allowed - (i) to enter Australia, and (ii) to reside permanently in Australia, and (d) notice has been given as required by subsection (3) …" (Emphasis in original.)
Under s 111 of the Act, only the Secretary of the Department of Communities and Justice is able to make an application for an order that the adoption of the child terminates the legal relationship between the child and the child's pre-adoptive parents.
This may be contrasted with reg 20 of the Regulations which states that the adoptive parent of the child in question may make the application.
By reason of reg 34 of the Regulations, those regulations do not apply to this case if there is in force a law in New South Wales having "the same" or "comparable" effect as reg 20.
The question is whether s 111 of the Act has the "same" or "comparable" effect as reg 20. If it does, only the Secretary can make the application in relation to Sophie.
In comprehensive and careful submissions, Mr Lim, counsel for Ms Smith, submitted that s 111 of the Act did not have the "same" or "comparable" effect as reg 20 of the Regulations and that accordingly, it would not be necessary for the Secretary to make the application.
I invited the Secretary to intervene to make submissions on that question. I was very grateful to receive submissions from the Crown Solicitor's Office. The Secretary agrees with the submissions made on behalf of Ms Smith and, without expressing any view as to the substance of Ms Smith's application, submitted that "it is not appropriate for orders to be made under s 111 of the Adoption Act" and that "the order sought by the Applicant in respect of reg 20 of the Hague regulations is appropriate".
One provision has the "comparable effect" to another if it has a "similar effect". [4]
Earlier decisions have considered whether provisions in the Act have "comparable effect" to those in the Regulations. [5]
It appears that no previous case has considered whether s 111 of the Act is to the same or comparable effect as reg 20 of the Regulations.
In my opinion, it is not.
As Mr Lim submitted, reg 20 is substantively different from s 111 of the Act.
Under reg 20, an adoptive parent can apply for an order, whereas under s 111 of the Act only the Secretary can do so. The identity of an applicant for an order terminating the legal relationship between a child and his or her pre-adoption parents is central to the "effect" of reg 20. By limiting the power in s 111 of the Act to be exercisable only on the application of the Secretary, the Act does not provide one of the main effects of reg 20, which is that a parent can move for an order whether or not the Secretary agrees, or has the inclination to make an application.
Further, under reg 20, but not under the Act, the Secretary must give notice to the Commonwealth Minister for Immigration and Multicultural Affairs who then may be heard on the application. [6] On the other hand, s 111(3) of the Act requires the Secretary to give written notice of the application to the Central Authority of the Convention country involved. These differences point to different interests being heard under the respective provisions and result in a difference in the substantive effect of the laws.
These matters make it clear, in my opinion, that s 111 of the Act is not to the same or comparable effect as reg 20 and that, accordingly, it is appropriate, as both Ms Smith and the Secretary have submitted, that I hear this application under reg 20.
In passing, I note that s 103 of the Act provides that the object of, amongst other provisions, s 111 is: "… to provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth law."
As has earlier been observed in relation to the relationship between reg 15 and s 107 of the Act, that object has evidently not been achieved. [7]

Regulation 20(1)(a)

Regulation 20 only applies if an adoption is granted in a Convention country of a child "habitually resident" in the Convention country by a person who is "habitually resident in Australia".
There is no doubt that when the adoption order was made, Sophie was "habitually resident" in Rwanda. She had lived nowhere else.
At the time the adoption order was made, Ms Smith was also living in Rwanda.
Ms Smith was born in Sydney and is an Australian citizen.
In her affidavit in support of this application, Ms Smith deposed: "I am currently single. I have never been married or in a de facto relationship. I frequently travelled to Rwanda from 2007 to 2015. I first visited Rwanda to train nursery teachers for the Rwandan Ministry of Education. After my first visit in 2007, I would travel back to Rwanda on a yearly basis; staying two weeks at a time on average each visit. In 2015 I was offered a long-term opportunity in Rwanda teaching and writing the curriculum for Rwanda's first college dedicated to the training of teachers. I accepted this opportunity, and I arrived in Rwanda on 26 August 2015. … I never intended to make Rwanda my permanent home. Throughout the time I lived in Rwanda I continued to remain on the electoral roll in Australia. I voted in Australian elections apart from when I was prevented from doing so because of the COVID 19 pandemic. In 2006 I purchased a property in Sydney with a mortgage. … I rented this property from August 2014 until November 2022 and during this time I paid Council rates for this property. … After returning to Australia [in June 2022] I recommenced living at this property in January 2023. Throughout the time I lived in Rwanda I lodged an annual tax return with the Australian Taxation Office (ATO) and I paid tax as an Australian resident."
This evidence persuades me that, although Ms Smith was in Rwanda when the adoption order was made, she was nonetheless "habitually resident in Australia" at that time. The question of whether a person is "habitually resident" is a question of fact requiring attention to the context and an examination of a person's intentions. In that regard it has been said that a person's intentions "will usually be relevant to a consideration of where that person habitually resides". [8]
Very properly, Mr Lim drew my attention to the fact that, notwithstanding these matters, the Certificate of Conformity of Intercountry Adoption issued by the Rwandan National Child Development Agency on 5 April 2021 stated that Ms Smith's habitual residence was Rwanda. Ms Smith's affidavit evidence did not explain how it was that the certificate made this statement. The statement appears to be inconsistent with the evidence of Ms Smith that I have set out at [34]. I think it likely that, as Mr Lim submitted, the statement in the certificate was a mistake.

Regulations 20(2B) and 20(2D)

As I have set out above, Ms Smith was required to provide a copy of this application to the "State Central Authority" for New South Wales, that is, to the Department of Communities and Justice. The Department was then obliged to notify the relevant Commonwealth Minister who was entitled to intervene.
On 20 October 2023, I was informed that these steps had been taken and that the Department of Home Affairs has advised that it does not wish to be heard in relation to this application.

Regulation 20(3)(a)

I may not make an order under reg 20 unless there is in force an adoption compliance certificate issued in Rwanda. Such certificate has been issued.

Regulation 20(3)(b)

I also may not make an order under reg 20 unless satisfied that the laws of Rwanda do not provide that the adoption of a child terminates the legal relationship between the child and the pre-adoptive parents.
In that regard, Mr Lim submitted: "The Convention recognises that there is variation between the laws of the Contracting States as to whether adoption has the effect of terminating the pre-existing legal relationship between the child and their pre-adoption parents (sometimes called a 'full' adoption as distinct from a 'simple' adoption). It makes provision for a receiving State to 'convert' a simple adoption into a full adoption where the adoption 'granted in the State of origin does not have the effect of terminating a pre-existing legal parent-child relationship'. Rwandan law did not provide that the adoption of [Sophie] terminated the parental relationship. So much is clear from the adoption compliance certificate, which is in a model form recognising that the adoption may or may not have that effect and which, in this case, was completed to record that it did not have that effect. The Hague Conference on Private International Law publishes 'Country Profiles' in the form of a questionnaire to which individual Contracting States have provided responses. In relation to simple and full adoptions, the Country Profile for Rwanda records that both are permitted. It also records that different criteria are applied in each case: full adoptions are only available where 'the child's parents are unknown or have abandoned him/her as declared by the court'. That reflects the text of Art 295 of the Rwandan Law No 32/2106 of 28/08/2016 Governing Persons and Family." (Footnotes omitted.) (Emphasis in original.)
I accept those submissions. I am satisfied that Rwandan law does not provide that adoption terminates the pre-existing parental relationship. It does so only in limited circumstances, that do not apply in this case.

Regulation 20(3)(c)

Finally, in order to make an order under reg 20 I must be satisfied that Sophie is allowed to enter Australia and to reside permanently in Australia.
Sophie holds a subclass 102 adoption visa which entitles her to enter Australia and reside in Australia as a permanent resident. She has done so since June 2022.

Should the order be made?

I am satisfied that there are good reasons to make the order sought.
Sophie's mother has died. It appears likely that her father has also died.
Sophie's life is now in Australia. Ms Smith is now the only maternal figure in Sophie's life.
As I have said, termination of the pre-existing parental relationship is a legal precondition to Sophie applying for Australian citizenship. I am satisfied that it is in Sophie's best interests that she be able to do this.

Approval of names

Sophie's current name is constituted as two given names. Surnames are not generally used in Rwanda. I am satisfied that it is in Sophie's best interests that she adopt the same surname as her adoptive mother. She proposes to retain her given names.

Conclusion

For those reasons, I made the orders to which I have referred.

Endnotes

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), reg 16(2); Adoption Act 2000 (NSW), ss 108-109.
Australian Citizenship Act 2007 (Cth), s 19C(2)(d).
Here, the Department of Communities and Justice.
Re S and the Adoption Act 2000 (NSW) (No 2) (2006) 68 NSWLR 467; [2006] NSWSC 1438 at [58]-[60] (White J, as his Honour then was, speaking of reg 15 and s 107 of the Act concerning the adoption of a child from a Convention country).
In Re S and the Adoption Act 2000 (NSW) (No 2) (supra), White J held that s 107 of the Act did not have the same or comparable effect as reg 15; and in Adoption of BW [2017] NSWSC 174, Brereton J (as he then was) held that s 113 of the Act was to the same or comparable effect of reg 5.
Regulations 20(2C) and 20(2D).
Re S and the Adoption Act 2000 (NSW) (No 2) (supra) at [53]-[55].
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 at [28] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). 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: 17 November 2023

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