Re KN and The Adoption Act 2000 [2005] NSWSC 896

80100/05 RE KN AND THE ADOPTION ACT 2000 JUDGMENT 1 HIS HONOUR: This is an application for the adoption of a girl, KN, born in Thailand. She is now aged 6 years and 9 months. A government official in Thailand delivered her into the case of the applicants 2 years and 3 months ago, and she has lived with the applicants since then. 2 The merits of the adoption are clear. The only questions relate to the preliminary and consequential orders which should be made. 3 The prospective adoptive parents, who are both New South Wales residents, made application to the Department of Community Services to adopt a child, preferably from Thailand. That Department contacted the Department of Social Development and Welfare in Thailand, which identified KN as a child suitable for adoption by them. She had, under Thailand law, been declared available for adoption. The procedure by which that happened is not disclosed in the evidence. 4 The child's natural parents had lived together for five years without being married. KN was their second child. The mother had gone to a child and family welfare centre when she was about eight months pregnant, seeking help. She remained in the care of that centre until she gave birth. As she could not afford to take care of both children, she left both of them at a Babies' Home, for temporary care. She visited her children twice in a period of almost seven months after the birth. Almost seven months after the birth she took the elder child with her, but left KN at the Babies Home, and has not seen her since. 5 Almost a year after that, a social worker of the Home sought to find the mother at the house she had previously lived in, but was informed that she had moved away, to the town she had originally come from. A social worker tried to find the mother there. That social worker found the child's grandmother, who did not know where the mother was, and who gave the information that the child's mother "had no certain house". The Thai Department of Social Development and Welfare issued a press release, and tried through mass media to find the mother, but without success. Nothing is known of the whereabouts of KN's father. 6 KN was, thereafter, placed in a foster home. 7 There is no evidence of anyone having been appointed the child's guardian under Thai law. 8 The orders which the Court is asked to make include the following: "2. THE COURT MAKES A FURTHER ORDER dispensing with the consent of the child's natural parents and of the child's guardian the Chairman (name unknown) of the Child Adoption Board of the Adoption Centre, Department of Social Development and Welfare, Bangkok, Thailand. 3. THE COURT MAKES A FURTHER ORDER dispensing with the giving of notice of the application to the natural parents of the child and to the child's guardian the Chairman (name unknown) of the Child Adoption Board of the Adoption Centre, Department of Social Development and Welfare, Bangkok, Thailand. 4. THE COURT MAKES A FURTHER ORDER releasing a certified copy of the Orders made herein to the Department of Community Services for transmission to the Department of Social Development and Welfare, Bangkok, Thailand." Dispense with Consent of the Alleged Guardian? 9 Thailand is not a country to which the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption applies. Nor is it a prescribed overseas jurisdiction for the purposes of Division 3 of Part 2 of Chapter 5 of the Adoption Act 2000. In these respects Thailand is in the same position as is Korea. 10 I am not satisfied by the evidence that the Chairman of the Child Adoption Board of the Adoption Centre, Department of Social Development and Welfare, Bangkok, Thailand was ever the guardian of this child. However, even if he or she had been appointed the guardian, I would follow the decision of White J in Re K & The Adoption Act 2000 [2005] NSWSC 858 ("Re K"), and hold that an order dispensing with the consent of that person was unnecessary. I respectfully agree with his Honour's reasons for reaching that conclusion. Dispense with Notice to the Alleged Guardian? 11 Section 88 Adoption Act 2000 provides: "(1) The Court may not make an adoption order unless at least 14 days notice of the application for the order … has been given: (a) to any person whose consent to the adoption of the child concerned is required under this Act and has not been given (or the requirement for which has not been dispensed with by the Court). … (4) The Court may dispense with the giving of the notice." 12 It follows from the reasoning of White J in Re K at [10] - [15] that, even if he or she ever had been KN's guardian, the Chairman is not a person whose consent to the adoption of the child is required. Hence he or she is not a person who needs be given notice of the application for the order (unless dispensed with) under section 88. Thus, the order dispensing with the giving of notice to the person is also unnecessary. Dispense with Natural Parents' Consent? 13 For the reasons given in Re K, section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) does not render unnecessary either the consent of the child's parents, or dispensing with that consent. Re K held, at [26], that in deciding whether to dispense with consent on the ground that the natural parents cannot after reasonable inquiry be found, whether an inquiry is reasonable is to be judged from the point of view of the person making the application, and of the person about whom the inquiry is made. 14 In deciding whether the natural parents cannot after reasonable inquiry be found, the reasonableness of an inquiry from the perspective of the applicant has a different role to play than the reasonableness of the inquiry from the perspective of the natural parent. It is for the purpose of deciding whether, on the basis of information which the applicants have presented to it, the Court ought act without the consent of the natural parents, that the question of whether there has been "reasonable inquiry" comes to be asked in the first place. The Court is, in effect, deciding whether it has a sufficient basis for action presented to it, notwithstanding that the natural parents have not consented. The seriousness of the action in question, involving as it does a severing of one set of parental ties and the creation of another, needs to be taken in to account in that exercise. 15 So far as the perspective of the applicants is concerned the primary focus of the inquiry, it seems to me, is on asking what else it was reasonably open to the applicants to do. So far as the natural parents are concerned, the focus of the inquiry includes matters such as what reason there is to believe that either of the parents would wish to express his or her views about the proposed adoption, and on whether there is any legitimate reason why the parent ought not to be asked to express those views. In Re K, the factual situation appears to have been that, if the NSW Department made some further inquiries in Korea, it might conceivably have ascertained the identity and whereabouts of the parents of the child in question. In that situation, I agree that the fact that the parents were accorded privacy under Korean law was an appropriate matter to take into account in deciding that it would not be reasonable to require those inquiries to be made. If there were a situation where there was reason to believe that a loving parent had been separated from his or her child through some misfortune like war, the court might expect that even inquiries which were long shots but not clearly futile should be made before it was satisfied that the natural parents could not, after reasonable inquiry, be found, while in a situation where the natural parents had clearly abandoned the child such inquiries might not be expected to be made. 16 In the present case, in light of the extremely sparse information known about the parents of KN, and the long time over which those parents have shown no interest in the welfare of KN, there is no reason to believe that any other inquiries are reasonably open, either to the applicants or the NSW Department, which might ascertain the identity or whereabouts of KN's natural parents. As well, KN's natural parents seem to have abandoned her long ago, and the strong likelihood seems today that they would have no interest in reclaiming her or preventing her adoption. 17 In the present case, I am satisfied that the parents of KN cannot, after reasonable inquiry, be found, and I will therefore make an order dispensing with their consent. Release a Certified Copy of the Orders? 18 The order which is sought releasing a certified copy of the orders to the NSW Department for transmission to the Department of Social Development and Welfare in Thailand is suggested, by the affidavits accompanying the application, to be one which can be made under section 131 Adoption Act 2000. That section provides: "(1) The nominated officer must give a certified record of an adoption order, or a discharge order, made by the Court in relation to a child (whose birth or previous adoption the nominated officer has reason to believe is registered in another State) to the appropriate authority of the other State. (2) The nominated officer must give a certified record of an adoption order, or a declaration, made by the Court under Chapter 5 in relation to a child from a country outside Australia to the appropriate authority of the country. … (5) In this section: appropriate authority means the person or body in another State or a country outside Australia having the functions prescribed by the regulations. certified record means a record certified by a nominated officer in writing, or in any other manner permitted by law, to be a true record." 19 When section 131(1) refers to "another State" it refers, in the context of the Act, and as extended by the Dictionary to the Act, to another State or Territory of Australia. Thus it does not apply to this child. Further, for reasons analogous to those of White J in Re K, the present adoption is not one which is made by the Court under Chapter 5, and hence section 131(2) does not apply in relation to it. Thus, section 131 provides no basis for the order sought. 20 Ordinarily, the Court has a wide inherent jurisdiction over its own judgments and orders, which would extend to what can be done concerning them. It is possible, however, for the inherent jurisdiction of the Court to be removed in some respect or respects by legislation. This might happen through an express provision in the legislation, or by necessary intendment of the legislation. 21 Chapter 8 of the Adoption Act 2000 (sections 133-175) contains detailed restrictions on the person to whom and the way in which information relating to an adoption can be disclosed. However Chapter 8 contains section 143, which provides: "(1) A person is not entitled to receive prescribed information under this Act from records of proceedings in the Court relating to the adoption of a person, except as provided by this section. (2) A person may apply to the Court for the supply of the information. (3) The Court or a proper officer of the Court may supply the information to the person. (4) Rules of court may be made for or with respect to orders under this section." 22 The content of the expression "prescribed information" is provided by clause 45 of the Adoption Regulation 2003, which says: "For the purposes of the Act, prescribed information is the information (being information in addition to that which persons are entitled to receive, or may in certain circumstances be supplied with, under and subject to the Act) that a person is entitled to receive under clauses 46-56." 23 Clauses 46-56 identify the types of information which different types of people can receive. It includes, under clause 46(1)(b)(v), 46(2)(f) and 48(1)(b)(vi) a copy of the Adoption Order. While the clauses to which I have just referred identify only certain particular types of people as the ones who are entitled to receive a copy of the Adoption Order, a copy of the Adoption Order is nonetheless "prescribed information" within the meaning of clause 45. Thus, section 143 confers on the Court a wide discretion concerning who should receive a copy of the Adoption Order. Thus, Chapter 8 of the Adoption Act 2000 does not cut down the Court's inherent jurisdiction concerning what may be done with adoption orders. 24 Rules of court have been made under section 143(4). Part 73 rule 17 Supreme Court Rules 1970 (which is a portion of the Supreme Court Rules which was not repealed upon the commencement of the Uniform Civil Procedure Rules 2005 on 15 August 2005) provides: "(1) An application under section 143 (2) may be addressed to the Registrar of the Equity Division. (2) The Court or a Registrar of the Court may deal with an application for the supply of information from records of proceedings in the Court informally by correspondence or upon the personal attendance of the applicant without conducting a formal hearing. (3) A person applying for information under section 143 must fulfil such reasonable requirements as may be made by a Registrar of the Court as to: (a) the verification of facts on which the application is based, and (b) identification of the proceedings in the Court to which the application relates, and (c) giving notice to any person, and (d) compliance with the requirements of the Adoption Act and the Adoption Regulation, and (e) any other matter." 25 Nothing in that Rule inhibits the Court in making provision for a copy of the Adoption Order to be released, in such circumstances as the Court thinks fit. 26 The Department of Social Development and Welfare in Thailand was the adoption agency through which the adoption of KN was arranged, and it was the entity which consented to KN travelling to Australia for the purpose of adoption by the applicants. In those circumstances it has a legitimate interest in having it established, in the way in which a certified copy of court orders can establish, that the process of adoption in whose earlier phases it has been intimately involved has now reached its conclusion. Disclosure of the order to that Department will not result in any sensitive personal information becoming known to it that it does not already have. It goes without saying that there could be no objection to the order being released in the first instance to the Department of Community Services, which has likewise been intimately involved in this particular adoption. It would be a waste of time and money to require there to be a separate application to the NSW Department for a copy of the order to be released to the Thai Department, under the administrative procedures for release of information under Chapter 8. In the exercise of the Court's inherent jurisdiction, and under section 143 Adoption Act 2000, I will make an order releasing a certified copy of the Orders to the Department of Community Services for transmission to the Department of Social Development and Welfare in Thailand. **********

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Legislation Cited (1)

Cases Cited (1)

Cited By (10)