Re J and the Family Law (Hague Convention on Intercountry Adoption)... [2009] NSWSC 471 | Case summary

58/2009 RE J AND THE FAMILY LAW (HAGUE CONVENTION ON INTERCOUNTRY ADOPTION) REGULATIONS 1998 (CTH); APPLICATION OF DIRECTOR, ADOPTION & PERMANENT CARE SERVICES OF THE DEPARTMENT OF COMMUNITY SERVICES OF NEW SOUTH WALES ON BEHALF OF R & ANOR JUDGMENT 1 HIS HONOUR: By a summons filed on 8 April 2009, the Director-General of the Department of Community Services of NSW seeks orders under the Adoption Act 2000 (NSW) for the adoption of the child "J" in favour of the designated applicants, and ancillary matters. On 16 April 2009 the Director, Adoption & Permanent Care Services of the Department of Community Services, acting as Central Authority for the State of New South Wales, Australia, filed an application on behalf of the applicants for an adoption order and ancillary orders to the same effect, under reg 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth). 2 In Re S and Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438; (2006) 36 Fam LR 376 where the facts were relevantly indistinguishable, White J held that the appropriate course is for the court to assess the adoption application under reg 15 of the Commonwealth Regulations rather than under the New South Wales legislation, essentially on the ground that where the adoption is governed by the Hague Convention on Intercountry Adoption and the applicants are in New South Wales, the Commonwealth legislation covers the field and prevails over relevant provisions of the Adoption Act of New South Wales under s 109 of the Constitution. Before reaching his decision, his Honour received submissions from counsel acting for the Director-General of the Department of Community Services, with which he disagreed. He accepted (at [53]) that the Parliament of New South Wales had intended that the provisions of the Adoption Act should have the same effect as, or comparable effect to, reg 15 (with the result that, under the Commonwealth regulations, the State legislation would apply). That intention was made plain in the explanatory memorandum to the legislation and the second reading speech, to which he referred. He held, however, that this objective had not been achieved by the drafting of the New South Wales legislation, particularly s 107 (at [55]). 3 One can readily envisage that such a conclusion might be challenged in a fully contested case, particularly if the outcome of the adoption application were to depend upon whether the Commonwealth or State criteria for adoption and ancillary matters were to be applied. The present case is not a contested application. I have received a submission from the Department simply expressing support for the view that the Registrar communicated on my behalf to the parties, that the correct course seems to be to proceed under the Commonwealth Regulation rather than the Adoption Act in light of Re S and Adoption Act. With respect, and without the benefit of contested argument, I find White J's reasoning to be plausible and I think the proper course is to follow his decision in the circumstances of this case. 4 I note, however, that in my view the present case would comply with the requirements of Chapter 4 and Part 2 of Chapter 5 of the Adoption Act of New South Wales were either or both of those provisions applicable, in view of the matters that I shall mention. I would therefore make the orders sought under the Adoptions Act if that were the applicable source of power (apart from the order concerning the child's date of birth, where there is a different source of power under State law, as I shall explain). Compliance with reg 15 5 Regulation 15(1) is as follows: "(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." 6 Under reg 15(3) the court may make an adoption 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 applicants habitually reside has agreed to the adoption of the child; (c) the child is allowed to reside permanently in Australia." 7 The evidence before the court shows that these requirements have been satisfied. I consider, first, whether the arrangements for the adoption have been made in accordance with the Convention (reg 15(1)(a)). 8 In substance Article 4 of the Convention requires the competent authorities of the State of origin, the Philippines, to: establish that the child is adoptable, determine, after other possibilities for placement have been considered, that an intercountry adoption is in the child's best interests, ensure that those whose consent is necessary for adoption have been counselled and have consented, and ensure that consideration has been given to the child's wishes and opinions. 9 In the present case, the Regional Trial Court of the Fifth Judicial Region, sitting at Daet, Camarines Norte, declared on 25 June 2003 that the child J was an abandoned, neglected and dependant child and committed her to the care of the Department of Social Welfare and Development of the Philippines. On 6 August 2003 the Reception and Study Centre for Children of the Department of Social Welfare and Development issued a Child Study Report extensively reviewing the child's circumstances, and the efforts that had been made to locate her parents and relatives. The Report concluded that the Court had declared the child to be legally free, that she would most benefit by being placed in a permanent home through adoption, and that all possible efforts had been exerted to trace her biological relatives but they had been futile, and consequently that it was best that the Department explore possibilities for her placement with a family who would accept her unconditionally and provide her with the opportunity to lead a normal life. The Report therefore recommended that the child be placed with an alternative family home through adoption. I infer that this recommendation was accepted by the Department, because a few months afterwards the Department discharged the child into the care of proposed adoptive parents from Australia, who undertook to be responsible for her custody, and in April 2004 the child was brought to Australia. 10 Taken together, the decision of the Court and the Report accepted by the Department provide evidence that the competent authorities in the State of origin have addressed the issues required to be addressed by Article 4 (except that the wishes of the child could not be addressed because she was at that stage an infant). The Child Study Report was a report of the Central Authority of the State of origin satisfying Article 16. 11 The affidavit of the Delegate of the Director-General establishes that the relevant Central Authority of the receiving State, the Department of Community Services of New South Wales, has prepared a report satisfying Article 15 and, as the competent authority of the receiving State, has determined in satisfaction of Article 5 that the applicants are eligible and suited to adopt a child and have been counselled as may be necessary, and that the child is authorised to reside permanently in Australia. 12 A complication in the present case is that after the original applicants for adoption of the child took custody of her in the Philippines and brought her to Australia, they had difficulty in adjusting to the parenting of the child, and the Department of Community Services of New South Wales eventually determined that it was in the child's best interests not to remain in that placement. She was then placed with short-term foster carers in New South Wales, and then the present applicants were selected as appropriate adoptive parents. 13 It seems to me that under the principles reflected in the Convention, the substitution of one set of proposed adoptive parents for another, after the child has become a resident of the receiving State, should be a matter for the authorities of the receiving State and not a matter for the authorities of the State of origin, although the provisions of Article 17 need to be considered. 14 Article 17 is in the following terms: "Any decision in the State of origin that the child should be entrusted to prospective adoptive parents may only be made if: (a) the Central Authority of that State has ensured that the prospective adoptive parents agree; (b) the Central Authority of the receiving State has approved such decision, where such decision is required by the law of that State or by the Central Authority of the State of origin; (c) the Central Authorities in both states have agreed that the adoption may proceed; and (d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State." 15 Article 17 could be taken to require that the Central Authority of the State of origin must ensure that the particular prospective adoptive parents in whose favour an adoption order will be made have agreed that the child be entrusted to them. There is plain evidence before me that the applicants agree to the child being entrusted to them, indeed the child has been with them for a substantial period of time and they now apply for an adoption order. But the Central Authority in the Philippines has not satisfied itself of that matter with respect to the present applicants, and that might conceivably be seen as non-compliance with Article 17.

16 In my view, however, that would not be the correct construction of the Article. The question addressed by Article 17 is whether the child should be entrusted to prospective adoptive parents before leaving the State of origin. In the present case Article 17 was applicable when the previously proposed adoptive parents went to the Philippines and accepted custody of the child from the Department of Social Welfare and Development. The requirements of Article 17 were satisfied at that time. As a matter of construction, it is not necessary to apply the article again when, after the child has arrived in Australia, the relevant Central Authority in this country, namely the Department of Community Services of New South Wales, alters the placement arrangements and puts the child in the custody of a new set of proposed adoptive parents. 17 On that basis, my view is that the change of proposed adoptive parents provides no basis for concern as to whether the requirements of the Convention have been satisfied. I am therefore satisfied that the arrangements for this adoption have been made in accordance with the Convention (reg 15(1)(a)). 18 The evidence I have reviewed above also satisfies me that the arrangements for the adoption have been made in accordance with the laws of the Convention country, the Philippines (reg 15(1)(c)). 19 As to whether the arrangements for the adoption have been made in accordance with the laws of the Commonwealth and State of habitual residence of the persons proposing to adopt the child (reg 15(1)(b)), I respectfully agree with the construction of those words adopted by White J in Re S and Adoption Act (at [47]-[51]). The question to be considered is whether the requirements of Australia and New South Wales (the State of residence of the proposed adoptive parents), so far as they are applicable under the Convention to the arrangements to be made for the adoption of the child, have been satisfied. The affidavit of the Delegate of the Director-General provides ample evidence in accordance with the laws of Australia and New South Wales as to the eligibility and suitability of the applicants to be the adoptive parents of the child and that the child is authorised to reside permanently in Australia upon adoption. Therefore reg 15(1)(b) is satisfied. 20 As to the requirements of reg 15(3), I am satisfied, having regard to the evidence referred to above, that: (a) the Central Authority of the Philippines, the Department of Social Welfare and Development, has agreed to the adoption of the child; (b) the Department of Community Services of New South Wales has agreed to the adoption of the child having regard to the Delegate's supportive affidavit; (c) upon adoption, the child will be allowed to reside permanently in Australia having regard to the certificates that have been issued on behalf of the Minister administering the Immigration (Guardianship of Children) Act 1946 (Cth). 21 Regulation 15(2) requires that the persons proposing to adopt the child must apply to the court for an order, and reg 15(2A) says that the application must be in accordance with Form 3. In the present case the application is in accordance with Form 3 and it names the proposed adoptive parents as the applicants, but as I have said, it is signed by the Director, Adoption & Permanent Care Services of the Department of Community Services. This somewhat ambiguous state of affairs is in fact sanctioned by Form 3, which contemplates that the application might be signed by the State Central Authority while remaining an application by the proposed adoptive parents. Therefore in my view reg 15(2) is satisfied. 22 There is evidence that the child J is physically in Australia, as required by reg 15(4). 23 In those circumstances the court is empowered to make an adoption order under the Commonwealth Regulations. 24 In my view the facts would also satisfy the requirements of the Adoption Act of New South Wales, namely Chapter 4 and Part 2 of Chapter 5, and so the court would be empowered to make orders under that legislation were it not for the application of s 109 of the Australian Constitution in the manner identified in Re S and Adoption Act. In particular, according to the reports of the Social Worker and the referees, the child's placement with the applicants has been very successful and therefore it is plainly in the best interests of the child that the adoption order be made. Orders to dispense with notice to and consent by parents 25 As to whether orders should be made to dispense with service of notice of the application on the mother and father of the child and to dispense with their consent, in Re S and Adoption Act White J drew attention to the different requirements as to consent under the Convention and under the New South Wales legislation (at [31]-[33]). In the case before him, White J was prepared to infer from the fact that the child had been declared abandoned and neglected that there was no necessary consent of the parents required under the law of the Philippines, and consequently that Article 4 of the Convention was satisfied (at [34]). In the present case the court has evidence, contained in the Child Study Report, that the Central Authority in the Philippines determined that all possible efforts had been made to trace the child's biological relatives, without success, and that therefore she should be placed for adoption. That is an adequate basis for the court to conclude that the requirements of Article 4 with respect to consent have been satisfied. 26 Under the Convention the question of consent is a matter for the State of origin rather than the receiving State. In those circumstances, as White J held, when an order is made under the Commonwealth Regulation for the adoption of a child of a Convention country in Australia, and the court is satisfied that the requirements of the Convention have been complied with in the State of origin, it is unnecessary and inappropriate for the court in the receiving State, when making an adoption order, to make ancillary orders dispensing with notice to and consent by the parents. I respectfully adopt that reasoning. 27 If, however, the adoption order in this case were made under the Adoption Act of New South Wales, the evidence would satisfy me that orders should be made under that Act dispensing with notice to and consent by the child's parents. The Child Study Report goes into some detail concerning the efforts made to locate the child's biological relatives, efforts which I regard as reasonably thorough. Also relevant are the distressing circumstances narrated in the Child Study Report, according to which J, then an infant, was rescued from being burned in the middle of a haystack, in circumstances where the person thought to be her mother was unable to cope with her care and abandoned her. 28 For these reasons I am satisfied that the proposed adoption order should be made, and that there is no need to make any orders dispensing with notice or consent, although I would make those orders were it appropriate to do so. 29 There are two further issues that need to be addressed, relating respectively to the name of the child and her date of birth. The child's name 30 The power of the court to make orders under reg 15 is conferred, in a somewhat peculiar way, by reg 15(2E), which merely says that an order made by the court must be in accordance with Form 8. Form 8 makes provision for the court to make an order authorising the adoption, and an order approving the child's forenames and surname. In that oblique way, when the requirements of reg 15 are satisfied the court is empowered to make an order concerning the child's name as well as an adoption order. It seems to me that the reasoning of White J in Re S and Adoption Act is applicable, so that reg 15(2E) and Form 8 cover the field in respect of the court's power to make an order concerning the name of the child concurrently with an order for the adoption of a child from a Convention country, and therefore under s 109 of the Constitution those provisions apply to the exclusion of the provisions about names in the Adoption Act of New South Wales. 31 In the present case a completed Form 8 has been filed which seeks an order that the forename of the child be "J" and that the surname of the child be the surname of the applicants. The summons under the Adoption Act is in equivalent terms. However, in their affidavit made on 29 March 2009 the applicants proposed that the forenames of the child be "J-B L". Then in a letter of submissions dated 10 June 2001 the Departmental officers said that, after speaking to the applicants, they requested that the child's forenames be "J B L" without the hyphen, so that J would be the first name and B and L would be the middle names. By their letter to me dated 10 June 2009 the applicants confirmed that they supported the proposal. 32 At all times from when she came into care in the Philippines until her placement with the applicants, the child was known only as "J" and not by any hyphenated or middle forename. The name "J" was not given to her by her parents but instead, it was given to her for the purposes of identification at the half-way home for children to which she was admitted when she was abandoned. 33 The child herself, who is now 10 years old, has provided the court with a statement in which she uses the forenames "J-B L", asking that she be allowed to keep her name because (she says) "B" means beautiful and "L" means dark beauty. The child's letter was written before the most recent correspondence, in which both the Department and the applicants proposed that her forenames be "J B L" without the hyphen. It seems to me that the child's wishes and concerns would be addressed by the revised proposal, under which she could be known as "J B" if she wished (strictly a hyphen would not be necessary, but that seems to be of no real moment) and she would have middle names meaning, respectively, beautiful and dark beauty. 34 It appears that the child has been known as "J-B L" from about the time her placement with the applicants commenced on 30 October 2005, and that she is referred to as "J-B" at school. The applicants' daughter, who will be her sister upon adoption, has a double first name. 35 If the application were being considered under the Adoption Act of New South Wales the court would be required, in making a decision about the adoption of the child, to have regard to the principle that "the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved": s 8(1)(e). Initially, the Director-General's delegate drew the court's attention to this principle and has said that the Department supports the principle, though she did not oppose the applicants' and the child's wishes. Then, as I have said, in the letter of submissions dated 10 June 2009 the Departmental Officers proposed that the forenames be "J B L". 36 There are some other provisions of the Adoption Act about names that would be relevant if the New South Wales legislation were applicable. Section 101(2) says that before changing the given name of a child, the court must consider any wishes expressed by the child and any factors (such as the child's maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes. Section 101(5) says that the court must not approve a change in the given name of a child who is more than one year old, or a non-citizen child, unless there are special reasons, relating to the best interests of the child, to do so. 37 There are no express provisions in the Commonwealth Regulations comparable to ss 8(1)(e), 101(2) and 101(5). It does not appear that there is any constraint upon the court's granting approval to the change of a child's name except, presumably, the best interests of the child (Re S and Adoption Act, at [80]). Article 16 of the Convention states that one of the things to be considered by the Central Authority of the State of origin in preparing its report is the child's ethnic, religious and cultural background, but the child's name is not expressly mentioned and in any event, those are matters for consideration by the State of origin rather than receiving State. Under reg 15(2E) and Form 8 the court has a discretion to approve the child's forename and it may be that ethnic, religious and cultural matters would, depending on the circumstances, be matters of relevance and importance. 38 In the present case I have formed the clear view that I should make the order sought by the Department, the applicants and (I assume) the child herself, approving the forenames "J B L". I would do so even if the constraints imposed by the Adoption Act were applicable, and a fortiori when exercising the less constrained discretion conferred by the Commonwealth Regulation. 39 In my view the making of the order that the applicants seek would not infringe the principle in s 8(1)(e), were it applicable. The order will not remove the first name that the child was given by the half way house in the Philippines. It will simply add second and third forenames. It seems to me that the selected names are in harmony with the first name that she was initially given - this is not a case of adding western names to a distinctively eastern given name. I have noticed that in the evidence the child is sometimes referred to by her first name alone and sometimes by her first and proposed second names together, and presumably that will continue, and so whatever cultural link her original first name has given her to her place of origin will remain. 40 Other important considerations are the wishes of the child herself, the fact that the proposed additions to her given name have a meaning for her which will presumably promote self-esteem, and the fact that once adopted she will have a sister who also has a double forename. In expressing her wishes the child has demonstrated that, though only 10 years of age, she is mature enough to have the firm opinion and to be able to support it with reasons that appear to me to be plausible. When all this is put together, there are in my opinion special reasons relating to the best interests of the child for changing her given name to the limited extent proposed. That would satisfy s 101(5), were it applicable. 41 I shall therefore make the order as requested. Date of birth 42 Both the form of orders filed under the Adoption Act and the form of orders filed under reg 15 propose that the court should make an order "to change the date of birth" of J to 13 May 1999. I shall consider, first, whether the evidence would support the court making some declaration or order that J was born on 13 May 1999. Then I shall consider whether the court has the power to make such a declaration or order. I have been assisted in this part of my judgment by the letter of submissions from the Departmental officers dated 10 June 2009, with which I generally agree. Evidence concerning J's date of birth 43 Most of the official papers relating to J give her date of birth as 13 May 1997. The origin of the idea that she was born in 1997 seems to have been an assessment of her age made when she came into care, reflected in a "Certificate of Foundling" dated 5 July 2001. That certificate, issued by a Civil Registrar in the Philippines, stated that J was found on 13 May 2001 and that she was 4 years old at the time. The Child Study Report prepared by the Reception and Study Centre for Children in the Philippines, dated 6 August 2001, said that her date of birth is unknown, that she was found on 13 May 2001 and that her "given" date of birth (based on the Foundling Certificate) is 13 May 1997. The document said that the child was approximately 4 years old when admitted to the Reception and Study Centre for Children on 21 November 2001, after previously spending some time in a half-way home for women. 44 For the most part, later documents simply adopt that date of birth without further investigation. An Official Discharge Slip and a Discharge (Health) Information Sheet, issued when she was first placed with Australian carers and dated 21 April 2004, gave her age as 6.11 years (approx) which would make her birth date some time in May 1997. The child's Travel Clearance for a Minor issued in the Philippines on 22 January 2004 gave her date of birth as 13 May 1997. Certificates issued under the Immigration (Guardianship of Children) Act 1946 (Cth) also gave her date of birth as 13 May 1997, as did the Social Worker's Report for her placement with the applicants. 45 The only "official" document giving a different view is a Health and Medical Profile issued in the Philippines and dated 22 September 2003, said that her "given" date of birth was 21 November 1998 and that at the date of the certificate her age was 4.10 years. However the statement of her birth date does not appear to have been based on any medical assessment, as the word "given" was used. 46 The applicants have tendered medical and educational evidence, which satisfies me that the child was born substantially later than 13 May 1997. A more difficult question is whether her date of birth was, or was close to, 21 November 1998 as the Health and Medical Profile said, or 13 May 1999 as advocated by the applicants. I shall review the evidence. 47 Doctor David McDonald, a consultant paediatrician in Port Macquarie, wrote about the child on 3 August 2004, after having reviewed her on that day. He said he had some correspondence from the Philippines stating her weight in December 2001 and he said he therefore expected that her birth date was around November 1998, which would make her 5.8 years at the time of his letter. He added a comment suggesting she may have been younger. He said: "The bone age estimations suggested that she was well below 5 years but sometimes after deprivation the bone age can be delayed. The records from the clinic however were well kept and showed slow but steady growth along the lower percentile." I take this passage to mean, in effect, that as the records of the Philippines clinic were well kept, and there was steady growth and no evidence of deprivation, the bone age estimations suggesting that her age was well below 5 years in December 2001 were reasonably reliable. Therefore that passage supports his view that the birth date was around November 1998. 48 Theresa Lindfield, a clinical psychologist, wrote a psychological assessment of J dated 25 August 2005. In that document she expressed the opinion that the date of birth given on the Foundling Certificate and other official documents issued in the Philippines, 13 May 1997, was wrong. Noting that the Health and Medical Profile gave her date of birth as 21 November 1998, Ms Lindfield expressed the opinion, based on her detailed assessment of J, that this date was much more likely to be accurate. It seems to me, however, that her principal concern was to reject the proposition that J was born as early as 13 May 1997, rather than to choose between a birthday in November 1998 or May 1999. That reading is confirmed by another report from Ms Lindfield dated 19 November 2005, dealing with cognitive test results, where she stated J's birthday in the heading of her letter as 13 May 1999, and said that her current age was estimated to be 6.6 years, which would make her birth date May 1999. 49 Dr Helen Cornwell, a specialist paediatric dentist, prepared a report dated 30 April 2009 on the results of a dental age estimation of J made on the basis of orthopantomogram radiographs of the child taken in 2006 and 2009. In her report, she said that her analysis of the radiographs pointed to a birth date in late November 2008, but she added this: "Trends in the literature would suggest that a tendency for dental age to be ahead of chronological age in some Asian populations exists and as such we would consider any result of ours to be an over-estimation." In other words, putting J's birth date in November 1998 was over-estimating at her age, in Dr Cornwell's opinion, though unfortunately the degree of overestimation was not mentioned. 50 She provided further evidence in an affidavit made on 4 June 2009. She said in her affidavit that the orthopantomogram evidence indicated that J was born in about November 1998, but it is impossible for that evidence to pinpoint the date of birth of a child exactly. She said the technique she applied was developed for a French-Canadian population, and referring again to the trends in literature suggesting a tendency for dental age to be ahead of chronological age in some Asian populations, she expressed the opinion that it was probable that J was born after November 1998. 51 Thus, the medical evidence is not definitive. On the whole Dr Lindfield's evidence amounted to a firm rejection of May 1997, with some support in her second report for May 1999 rather than November 1998. Dr McDonald opted for November 1998 but clearly his view was only an approximate estimate, based on clinical records of weight from the Philippines in December 2001. I think the strongest evidence is from Dr Cornwell, because it is based on the more precise science than the other reports. Although the radiographic evidence pointed to November 1998, in the end she was firmly of the opinion that the birth date was later. 52 I have also been influenced by written opinions expressed by the Principal of J's primary school. He wrote a letter dated 5 May 2008 stating that J's learning and social skills were reflective of and consistent with a student in Year 3, where the children are aged 8 to 9 years. If she were born on 13 May 1997 she would have been almost 11 on 5 May 2008. If she were born in November 1998 she would have been 9.4 in May 2008, a little outside the range stated by the Principal for a Year 3 child. If she were born on 13 May 1999 she would have been just under 9 on 5 May 2008, and therefore within that range. Therefore the Principal's assessment of her learning and social skills points to the probability that she was born later than November 1998 and some time in the first half of 1999. 53 The Principal updated his assessment by letter dated 29 April 2009. J is now in Year 4 where the children are generally 9 or 10 years of age. He gave some assessments of J's literacy and numeracy skills and said that this data reflected the progress of a child who would be approximately the age of 10 years. That would suggest that she was born in the first half of 1999, perhaps in the range from March to May, given the date of this letter. 54 Weighing up all this evidence, it seems to me, on balance, that J was not born as early as November 1998, in view of the medical evidence and the school Principal's assessment. Her likely date of birth was, in my view, some time in the period from March to May 1999. 55 The applicants and J herself have a strong desire that her birth date be officially declared to be 13 May 1999. The Department supports the view. The child has celebrated her birthday on 13 May for most of her life, and her school Principal and the applicants believe that she should remain in her current school class where she is performing satisfactorily. The applicants are concerned that if her birth date is determined to be in November 1998 she will be expected to move up a grade at school, and they say that would be to her disadvantage. 56 It seems to me that the birth date 13 May 1999 is consistent with the evidence, and as the evidence does not identify a specific date in 1999, if the court is to make any determination of the actual birth date it has no choice but to make an estimate of the birth date within the range established by the evidence, but having regard to the practicalities of the situation and the best interests of the child. That approach is supported by the Department in their letter of submissions. I am therefore prepared to find, and I do find, that J's birth date is 13 May 1999. The court's power to make an order 57 In a letter to the Department and the applicants, the Registrar conveyed my tentative view that the court does not have the power to change the birth date of an adopted child, but it can make a finding about the actual birth date and then direct the Registrar of Births, Deaths and Marriages to make an entry in the Register to reflect the court's findings. The Registrar's letter invited submissions. In their letter of submissions dated 10 June 2009, the Departmental officers agreed with the view that the court does not have the power to change the child's date of birth but it has power to make a finding and direct registration accordingly. 58 It does not seem to me that the power to make an adoption order implies any power to alter external facts such as a birth date. Since, however, I am prepared to find as a fact that the date of birth is 13 May 1999, it is unnecessary to pursue the question whether I can make an order "changing" the birth date. The question is whether I have the power to make and give effect to a finding as to the birth date. 59 The power to make an adoption order, per se, probably does not imply any power to make a finding as to the date of birth of the adopted person. The adoption order affects the relationship between the adopted child and the adoptive parents whatever the age of the former may be, and does not require that matter to be determined. Not surprisingly, neither the Adoption Act of New South Wales nor the Commonwealth Regulation addresses the question of determining the birth date. When an adoption order is made under the Adoption Act, it is recorded in the Register of Births, Deaths and Marriages and the registration particulars include the date of birth of the adopted child, but that is a matter for the legislation dealing with registration of births, deaths and marriages rather than with the process of adoption itself. 60 One turns, therefore, to the Births, Deaths and Marriages Registration Act 1995 (NSW), to seek an available and appropriate power. There are provisions in that Act requiring the Registrar to register an adoption (Part 4) but they only apply, relevantly, when an adoption order is made under the Adoption Act 2000 (NSW), not when an order is made under the Commonwealth regulation, so they do not apply in the present case. 61 However, s 19(2) of the Births, Deaths and Marriages Registration Act says: "If any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child's parents, the court may order registration of the birth or the inclusion of registrable information about the birth or the parents in the Register." "Registrable information" is defined in s 4(1) to mean information that must or may be included in the Register. 62 The making of the findings necessary to support the adoption order in the present case, and the making of a finding about the date of birth of J, constitute findings by this court "about a birth" and about "a child's parents" for the purposes of s 19(2). Consequently the court is empowered by s 19(2) to order the inclusion of registrable information about the birth and the parents on the Register. The information that should be included in the Register in respect of the child J in the present case is, in my view, the following: (a) the full name, sex and date and place of birth of J; (b) the full name, maiden family name, occupation and usual place of residence of the adoptive mother of J; (c) the date of birth (or age) and place of birth of the adoptive mother of J; (d) the full name, occupation and usual place of residence of the adoptive father of J; (e) the date of birth (or age) and place of birth of the adoptive father of J; (f) the date and place of marriage of the adoptive parents of J; (g) the given names and date of birth of each other child of the adoptive parents. 63 Plainly all of these items constitute information that may be included in the Register, for they are precisely the items of information that would be registered under s 24 of the Act and reg 6 of the Births, Deaths and Marriages Registration Regulation 2006 if the adoption of J were ordered under the Adoption Act of New South Wales. Therefore they are items of "registrable information". They are registrable information about the birth of J and about J's parents. Therefore the court has the power under s 19(2) to order the inclusion of these items of information in the Register. I shall make an order accordingly. 64 Section 25A(2) of the Act says that a birth certificate for an adopted person must not include any information that indicates that he or she has been adopted. That protects the position of the adopted person. There may be some doubt as to whether that provision applies in the case of J, since particulars relating to her and her parents are to be registered pursuant to an order of the court under s 19(2) rather than pursuant to registration of a State adoption order made under the Adoption Act. To avoid doubt, I intend to direct the Registrar, for all purposes including for the purpose of issuing a birth certificate, to treat the registration of the registrable information concerning J and her parents pursuant to my orders as if it were the registration of an adoption under Part 4 of the Act. Law reform 65 I respectfully draw attention to a practical difficulty about adoptions from Convention countries identified in these reasons for judgment. On the authority of Re S and Adoption Act, an adoption order in favour of New South Wales adoptive parents of a child from a Convention country is to be made under the Commonwealth Regulation rather than under the Adoption Act of New South Wales. However, the Commonwealth Regulation contains provisions designed to give effect to the comprehensive adoption legislation of a State of Australia and that suggests that in the normal course, adoption orders should be made under State legislation. There is certainly an assumption underlying the Births, Deaths and Marriages Registration Act 1995 (NSW), and for all I know in other New South Wales legislation which deals collaterally with adoption matters, that adoptions in New South Wales are made under the Adoption Act and not some other source of power such as the Commonwealth Regulation. When these assumptions are shown to be false, there is a risk that an adoption may not come to be treated in the appropriate way, and even a risk that the adopted child might somehow be prejudiced. 66 It seems to me that the problem stems from the language of the Adoption Act of New South Wales, especially s 107, which might have been, but was not, drafted so as to make sure that the Act is an intercountry adoption law. According to reg 34(1) of the Commonwealth Regulation: "A provision of these Regulations … does not apply to a State in which there is in force a law (an intercountry adoption law ) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for that State."

Re J and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth); Application of Director, Adoption & Permanent Care Services of the Department of Community Services of New South Wales on behalf of R & Anor [2009] NSWSC 471

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